Michael St. Jacques: Lead By Example

There is one question that can solve the mass confusion surrounding the recent conduct of the United States of America in regards to appalling Human Rights Violations. This question could put all debate to rest for good. Did the United States of America actually ever sign the Geneva Convention? Could it be that the international code doesn't even apply to the world's only super power?

Although, the Bush Administration may wish it was never signed for the sake of convenience, the fact is that in 1882, President Chester Arthur did sign the treaty and in doing so made the United States of America the 32nd nation to do so. This was followed by ratification of the document by the U.S. Senate. Three more conventions followed in 1907, 1929, and 1949, respectively. The fourth convention was amended in 1977. The United States signed and had all these conventions ratified except for the two protocols of 1977, which provide further protection for civilians during war. So much for that.

Since George W. Bush has not personally signed any of the treaties, could it be that he simply doesn't know their contents? One might even ask if he knows where Geneva is or does he think Geneva is an imported type of cheese? But what about Donald Rumsfeld? Condoleezza Rice? Surely, they know the contents of the Geneva Convention. Well, they are either oblivious to even the presence of such a treaty or simply doesn't care. A few examples may clear the air.

Guantanamo Bay

First and foremost, is not the issue of determining the rightful status of the prisoners being held at the Cuban military base but who is the correct body to make that determination. The United States took it upon themselves to assign the prisoners "unlawful combatants" because they felt they did not meet the criteria outlined in the Geneva Convention articles to classify these people as "prisoners of war". The United States would be well within their rights to do this if there was absolutely no doubt as to the status of these prisoners since article 5 requires that "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."(see Geneva Convention) The level of debate from intellectuals, lawyers and human rights organizations definitely qualifies as doubt, and thus a competent tribunal is needed to determine the status of the detainees. Kenneth Roth, Executive Director of Human Rights Watch addresses this violation of the Geneva Convention in a letter to National Security Advisor Condoleezza Rice:

Article 5 requires the establishment of a competent tribunal only "[s]hould any doubt arise" as to whether a detainee meets the requirements for POW status contained in Article 4. The argument has been made that the detainees clearly do not meet one or more of the four requirements for POW status contained in Article 4(A)(2) - that they have a responsible command, carry their arms openly, wear uniforms with distinct insignia, or conduct their operations in accordance with the laws and customs of war. However, under the terms of Article 4(A)(2), these four requirements apply only to militia operating independently of a government's regular armed forces - for example, to those members of al-Qaeda who were operating independently of the Taliban's armed forces. But under Article 4(A)(1) these four requirements do not apply to "members of the armed forces of a Party to the conflict as well as members of militia … forming part of such armed forces." That is, this four-part test would not apply to members of the Taliban's armed forces, since the Taliban, as the de facto government of Afghanistan, was a Party to the Geneva Convention. The four-part test would also not apply to militia that were integrated into the Taliban's armed forces, such as, perhaps, the Taliban's "55th Brigade," which we understand to have been composed of foreign troops fighting as part of the Taliban. Administration officials have repeatedly described the Guantanamo detainees as including both Taliban and al-Qaeda members. A competent tribunal is thus needed to determine whether the detainees are members of the Taliban's armed forces (or an integrated militia), in which case they would be entitled to POW status automatically, or members only of al-Qaeda, in which case they probably would not be entitled to POW status because of their likely failure to meet the above-described four-part test. Until a tribunal makes that determination, Article 5 requires all detainees to be treated as POWs.

(The letter to Condoleezza Rice from Kenneth Roth from Human Rights Watch can be viewed in its entirety here: HRW letter)

Until the doubt is resolved via a competent tribunal, the captives "shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Author and weekly Guardian columnist, George Monbiot accuses the United States of 15 violations of the Geneva Convention. A few of these accusations are detailed by Monbiot in his article entitled, One Rule for Them ...;

His prison camp in Guantanamo Bay, in Cuba, where 641 men (nine of whom are British citizens) are held, breaches no fewer than 15 articles of the third convention. The US government broke the first of these (article 13) as soon as the prisoners arrived, by displaying them, just as the Iraqis have done, on television. In this case, however, they were not encouraged to address the cameras. They were kneeling on the ground, hands tied behind their backs, wearing blacked-out goggles and ear phones. In breach of article 18, they had been stripped of their own clothes and deprived of their possessions. They were then interned in a penitentiary (against article 22), where they were denied proper mess facilities (26), canteens (28), religious premises (34), opportunities for physical exercise (38), access to the text of the convention (41), freedom to write to their families (70 and 71) and parcels of food and books (72).

The United States is clearly in violation of Article 5 of the Geneva Convention and what is also clear is it was done intentionally and for self-serving purposes. Many writers have cited the limitations of interrogation imposed by the Geneva Convention for detainees who have been granted "prisoner of war" status as the main reason why the United States declared the captives as "unlawful combatants", however upon further examination this reasoning appears suspect. Article 17 of the Geneva Convention states that "Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information." How does this infringe upon the United States ability to interrogate? The limitations place upon interrogation methods in Article 17 are "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind." As Human Rights Watch points out in the a-fore mentioned letter to Condoleezza Rice that "the same is true for all detainees, whether held in time of peace or war."

More likely than interrogation limitations is the length of detainment and trial stipulations. Regarding the length of detainment, the Geneva Convention states that repatriation must occur at the end of the conflict if taking up arms against opposing military forces was the only offense committed by the prisoner of war. The United States preferred the situation where they need not charge a captive with any crime as well as detain them for as long as they please. The International Committee of the Red Cross has shown a great deal of concern over this matter stating "The ICRC's main concern today is that the US authorities have placed the internees in Guantanamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism."( see ICRC)

Although many changes have been made to the trial procedures since July 3rd, 2003 when President Bush first announced six of the foreign captives being held at the Guantanamo Bay Navel Station in Cuba as eligible for trial by U.S. military commission justified concerns still remain. There are three major concerns regarding these proceedings. Firstly, neither the defendant nor his lawyer are assured access to all of the evidence that is being presented against him. Secondly, the only possibility of appeal is before another panel of military judges as opposed to a civilian one. This prohibits independent insight into the appeals process. Lastly, even if a suspect is acquitted, he may continue to be held for security reasons.

Rumsfeld announced that long term detainees will "receive annual reviews to determine whether they should remain in custody". It hasn't been made clear whether the prisoners will afforded lawyers or who exactly will make the final decision on the annual reviews. Speculation points to Rumsfeld as having the final word. The many "lucky" ones who escape the distorted verison of a fair trial under the U.S. military commission are simply not granted the right to a trial at all. It should be noted that even though the U.S. has not granted these detainees the rights that "prisoner of war" status affords them, that even "unlawful combatants" are permitted to rights under international law such as humane treatment and to a fair trial if charged with a crime. Amnesty International, Human Rights Watch (HRW), and Human Rights First have all had their requests to observe the military tribunals refused because of limited seating.

Filming POWs

On Monday, March 24, 2003, Robert H. Reid of The Associated Press wrote that "Arab television yesterday aired Iraqi footage of purported dead Americans, some sprawled in a room, and interviews with five, seemingly tense U.S. prisoners."(U.S. angry about POWs put on Iraq TV) The U.S. reaction was justifiably one of anger. State Department spokesman Richard Boucher denounced the airing of the footage by stating, "They have showed gruesome pictures of prisoners of war in violation of the Geneva Convention,". Boucher is absolutely correct. The displaying of American "prisoners of war" on television is a direct violation of Article 13 of the Geneva Convention. Boucher continues to say "We have more than 2,000 Iraqi prisoners and we treat them according to the Geneva conventions". One question comes to mind when reading this. Why stop treating them according to the Geneva conventions when it comes to Saddam Hussein?

Is the public expected to believe that the broadcasting of video footage and photographs of Saddam Hussein was done in order to display to the Iraqi people that they no longer have anything to fear? The fact is they did then and do now have plenty to fear. The U.S. has no authority to decide when it is permissible to violation any article of the Geneva Convention for what ever reason, imagined or otherwise. The images of the fallen leader of Iraq were intended as a display of malicious gratification. Columnist Charles Krauthammer aptly describes the intention:

the anonymous genius at U.S. headquarters who chose this clip as the world's first view of Saddam Hussein in captivity.... We show Saddam Hussein--King of Kings, Lion of the Tigris, Saladin of the Arabs--compliantly opening his mouth like a child to the universal indignity of an oral (and head lice!) exam. Docility wrapped in banality. Brilliant. Nothing could have been better calculated to demystify the all-powerful tyrant. It was a beautiful sight. (Krauthammer comments)

A glorious sight of gloating, indeed.

Child Executions

Article 37(a) of the UN Convention on the Rights of the Child states: "No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;"(Rights of the Child). Amnesty International points out that the "same prohibition appears in three other international human rights treaties - the International Covenant on Civil and Political Rights, the American Convention on Human Rights and the African Charter on the Rights and Welfare of the Child".(see Amnesty) There is only one country that has not ratified at least one of the a-fore mentioned treaties. China? No. Iran. Wrong Again. It's the United States of America. There have been 35 executions of child offenders since January 1990 and an alarming 19 of those took place in the U.S. The United States are not violating any treaties through this conduct simply because they refuse to sign and ratify any of them. In 2002, the Supreme Court ruled that it was unconstutional to execute people who are mentally disabled. The same should be said for the execution of children.

Demolition of Iraqi Homes

There have been numerous cases of United States forces destroying homes for means other than military necessity. Kenneth Roth of Human Rights Watch wrote a letter regarding these issues addressed to the Secretary of Defense, Donald Rumsfeld, citing four cases where this has reportedly occurred. Here is one such case:

The most recent of these incidents was reported in an Associated Press dispatch of January 3, 2004. According to this report, U.S. forces operating in or near Samarra destroyed the home of Talab Saleh. Witnesses told the AP that Saleh is suspected of orchestrating attacks against U.S. forces. However, there was no indication in the report that the house was being used in carrying out an attack at the time it was demolished. The AP also reported that troops arrested Saleh’s wife and brother, saying they would only be released when Saleh surrenders. The Fourth Geneva Convention of 1949, which applies during military occupation, prohibits the punishment of any person for an offense that he or she has not personally committed. This prohibition outlaws any use of "collective penalties" or reprisals against civilians or their property. In addition, the detention of close relatives for the purpose of prompting the surrender of a wanted person appears to be in violation of the strict international humanitarian law prohibition against hostage-taking. Under the laws of war, a hostage is a person taken into custody for the purpose of compelling some course of action by the opposing side. Taking hostages is a grave breach of the Geneva Conventions-in other words, a war crime.

Three other such cases can be viewed here.(Human Rights Letter)

In light of the brief outlining of these issues, it is no wonder why the United States fought in vain against the establishment of the International Criminal Court. The hypocrisy of the U.S. in regards to human rights violations is evident and highly disturbing. George W. Bush has issued warnings about violations of the Geneva Convention (ok maybe he doesn't think Geneva is an imported cheese). These warnings were stern in their nature, promising those violators will be punished as war criminals. So the only question left to ask is who should be tried first: George W. Bush or Donald Rumsfeld? The answer to that is as disturbing as the actual human rights violations because it is what allows these crimes against humanity to continue. George Bush and Donald Rumsfeld will not spend a day in court over these direct violations because of the absolute lack of means to enforce such major infringements. The need for a balancing power is evident everywhere.

(Michael St. Jacques is an administrator of a small but growing online discussion community. www.thevoiceexchange.com )

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