Bush Administration Orders Armed Forces to Comply With Geneva Rules in War on Terror

By Anthony Dworkin

It was revealed today that the Pentagon has ordered all U.S. armed forces to treat suspected terrorists detained during America's military campaign against al-Qaeda in accordance with Common Article 3 of the Geneva Conventions.  The Deputy Defense Secretary, Gordon England, outlined the new policy in a memo sent to senior officers on July 7, and released to the media today.

The memo effectively repudiates the stance adopted by President Bush in February 2002, when he issued a directive saying that no provision of the Geneva Conventions was applicable to America's proclaimed war on terror.  In the memo, Mr. England requests that the senior officers "review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3."

Press coverage is presenting the new policy directive as a major shift by the administration.  However, the new move is in fact little more than an acknowledgement of the Supreme Court's ruling in the Hamdan case, delivered at the end of June.  In that decision, the Court said that military tribunals established by the administration at Guantanamo were unlawful, and also declared that Common Article 3 (which sets rules for conflicts involving non-state groups) was binding on America's military anti-terrorist operations.

Now that the Court has held that Common Article 3 is applicable, the administration is obliged as a matter of law to observe the standards it lays down.  Moreover, under a domestic statute called the War Crimes Act, violations of Common Article 3 can be prosecuted as war crimes in American courts.  Therefore any American service member who fails to meet the standards of Common Article 3 in their treatment of detainees from now on might be liable to prosecution for committing war crimes.  Under these circumstances it is entirely predictable that the Pentagon should warn its officials to make sure that they observe the appropriate rules.

The Pentagon memo applies only to Department of Defense personnel, and thus excludes the CIA.  In the past, it has been reported that the CIA may have been responsible for the most coercive interrogation practices used against detained al-Qaeda suspects, including methods such as waterboarding that would certainly not be permitted under Common Article 3.

However, in the wake of the Supreme Court ruling, any CIA agents who now treat detainees in a manner that violates Common Article 3 would also be liable (assuming he or she was a US national) for prosecution under the War Crimes Act.  It therefore seems likely that the CIA will have instructed its agents to comply with the standards of Common Article 3.

Common Article 3, which applies in conflicts "not of an international character" prohibits torture, humiliating and degrading treatment, and trials that are not before regularly constituted courts offering commonly recognized judicial guarantees.

Related Chapters from Crimes of War: What the Public Should Know:

Terrorism

Related Links:

Memorandum on the Application of Common Article 3 (.pdf file)

Office of the Secretary of Defense

July 7, 2006

Hamdan v. Rumsfeld (.pdf file)

Supreme Court Opinion

June 29, 2006

Military Commissions Home Page

U.S. Department of Defense

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