America's Interrogation Network: Rules on the Treatment of Prisoners in International Law

The disclosure of abuses against detainees at the U.S.-run Abu Ghraib prison in Iraq has outraged people around the world and led to charges against a number of soldiers involved. It has also raised pressing questions about the legality of the wider interrogation practices used by U.S. military forces and intelligence agents against captives from whom they are trying to extract information.

US soldiers walk through the halls inside the prison of Abu Ghraib, outside Baghdad, Iraq, Wednesday 05 May 2004. Photo © EPA/ANJA NIEDRINGHAUS

Since the attacks of September 11, the battle against al-Qaeda and other linked terrorist groups has become a central focus of U.S. military action. In Iraq , the United States has found itself as an occupying power confronting a guerrilla insurgency. The result has been a global network of detention cells – both acknowledged and secret – in which captives are held for the primary purpose of extracting intelligence through interrogation.

Protected neither by prisoner of war status nor by the rights of criminal defendants under the rule of law, these detainees are in a highly vulnerable position. But they are not without rights. Although the protection available to them varies according to their different circumstances, all those held by U.S. forces are covered by international conventions and laws that set strict limits on what can be done to them. And it appears that the U.S. government has approved practices to be used against many of these prisoners that are difficult to square with the relevant legal standards.

The Geneva Conventions

The Geneva Conventions of 1949 remain the definitive codification of the modern law of armed conflict. They apply in “international armed conflict” – that is to say, in all wars between two or more states. The Conventions are also applicable in cases of military occupation of one country by another.

In testimony before Senate committees in recent days, Defense Secretary Donald Rumsfeld has confirmed that the U.S. military regards the Geneva Conventions as binding on its forces in Iraq .

Under the Geneva Conventions, all detainees fall into one of two categories. Either they are prisoners of war (whose rights are set out in the 3rd Geneva Convention) or they are civilians who are being held as criminal suspects or “for imperative reasons of security” whose rights are specified in the 4th Convention. Prisoners of war are entitled “in all circumstances to respect for their persons and their honour” (Article 14) and “must at all times be humanely treated” (Article 13). Moreover, the Convention states unequivocally that prisoners of war are required only to give their name, rank and serial number when questioned, and that “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” (Article 17). Willful killing, torture or inhuman treatment are designated as “grave breaches” of the Convention, and qualify as war crimes.

The 4th Geneva Convention protects all citizens of a country at war who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals,” and who are not covered by the other Conventions. They must “at all times be humanely treated” and protected “against all acts of violence or threats thereof” (Article 27). The Convention requires that no “physical or moral coercion” should be exercised against those covered by it, “in particular to obtain information from them or from third parties” (Article 31). Murder, torture, or “any other measures of brutality” are expressly forbidden (Article 32). As with the 3rd Geneva Convention, willful killing, torture and inhuman treatment are listed as grave breaches.

The Conventions are binding on all public agents, both military and civilian, of the countries concerned. They would apply to the actions of civilian contractors and C.I.A. agents as well as members of the U.S. armed forces.

The Geneva Conventions were drafted in the aftermath of World War II, when public anger at the treatment of POW's and captured civilians by the Axis powers was running high. They set a high standard for the treatment of all detainees and appear to allow little scope for the forceful interrogation of captives. These standards are absolute – there is no scope for them to be altered in the face of terrorism or insurgency.

Non-International Armed Conflict

The Geneva Conventions also contain a limited set of provisions that apply in "non-international conflict."  These are set out in Common Article 3 -- so called because it appears as Article 3 in all four of the Conventions.  According to many experts, this article should be understood as applying to all armed conflicts that are not fought between nation states (and therefore covered by the rest of the Conventions).  On this view, Common Article 3 would be applicable to the U.S. conflict with al-Qaeda.

Common Article 3 requires that detainees “shall in all circumstances be treated humanely.” Murder, cruel treatment and torture are forbidden, as are “outrages upon personal dignity, in particular, humiliating and degrading treatment.” The article also requires that "the wounded and sick shall be collected and cared for."

Customary International Law

Even if Common Article 3 is not held applicable as treaty law to the war on terror (which appears to be the administration's position) there are agreed to be some rules of conduct that count as customary law, applicable in all armed conflicts. U.S. officials have stated that these laws are applicable to its “global war on terrorism” and govern the treatment of captives held in Afghanistan or at the Guantanamo Bay naval base in Cuba.

It would be almost universally agreed that all the basic guarantees of Common Article 3 are part of customary law, as well as the similar provisions of Article 75 of the first Additional Protocol of 1977. Article 75 of API requires that detainees “shall be treated humanely in all circumstances.” It forbids murder, torture (“whether physical or mental”), outrages upon personal dignity and threats to commit any of these acts.

The Torture Convention

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was agreed in 1984 and ratified by the United States in 1994. It defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person,” and prohibits it under all circumstances. It also prohibits government agents from carrying out “other acts of cruel, inhuman or degrading treatment or punishment.” (When ratifying the Convention, the U.S. government entered a reservation specifying that it would only consider itself bound by this obligation “ insofar as the term `cruel, inhuman or degrading treatment or punishment' means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and-or Fourteenth Amendments to the Constitution of the United States.”)

The Torture Convention also prohibits the transfer of anyone to a state “ where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

How the Law Applies in Iraq

How do these various legal standards apply in practice – and how do they relate to authorized and alleged U.S. policies? In Iraq, there is no question that the abuses revealed in the photographs taken at Abu Ghraib represent a clear violation of all these bodies of law. They also represent violations of U.S. Army regulations and U.S. law. Several soldiers face court-martial and the Justice Department has announced it is investigating the possibility of criminal prosecution against intelligence officers or civilian contractors who may have broken the law.

But beyond these particular crimes – which the U.S. Army says were unauthorized and not known to superiors - what about the more general way in which detainees in Iraq are handled? According to a report by the International Committee of the Red Cross that was leaked to the Wall Street Journal, those arrested in connection with suspected security offences or deemed to have an intelligence value “were at high risk of being subjected to a variety of harsh treatments ranging from insults, threats and humiliations to both physical and psychological coercion, which in some cases was tantamount to torture, in order to force cooperation with their interrogators.”

The ICRC Report noted that in the military intelligence section of Abu Ghraib, “methods of physical and psychological coercion used by the interrogators appeared to be part of the standard operating procedures by military intelligence personnel to obtain confessions and extract information.” The report states that “several military intelligence officers confirmed to the ICRC that it was part of the military intelligence process to hold a person deprived of his liberty naked in a completely dark and empty cell for a prolonged period.” Clothes and bedding would be doled out to prisoners in return for cooperation in questioning. The report said the ICRC had documented other forms of ill-treatment including “threats, insults, verbal violence, sleep deprivation caused by the playing of loud music or constant light in cells devoid of windows…Punishment included being made to walk the corridors handcuffed and naked, or with women's underwear on the head, or being handcuffed either dressed or naked to the bed bars or the cell door.”

The ICRC report describes treatment that was openly practiced and acknowledged by military intelligence officers. Moreover, their findings were communicated to U.S. military authorities and do not appear to have prompted any changes in policy or official investigation until the more severe abuses portrayed in the notorious photographs were discovered. The ICRC strongly suggests that these practices contravene regulations in the Geneva Conventions requiring humane treatment, forbidding cruel and degrading treatment, and prohibiting torture and coercion.

There is now evidence that some of these actions were officially sanctioned for use under certain circumstances. An official Pentagon document detailing interrogation practices that were authorized for use in Iraq was provided to members of the U.S. Senate. It divided interrogation techniques into two categories – those which could be used freely, and those which required written authorization from the U.S. commander in Iraq , General Ricardo Sanchez. Practices that required special authorization from Lt. Gen. Sanchez included dietary manipulation (e.g. keeping prisoners hungry), environmental manipulation (loud music or bright lights), sleep management (keeping prisoners awake or reversing their sleep patterns), isolation, sensory deprivation (hoods, blindfolds etc.), keeping prisoners in “stress positions” for up to 45 minutes, and the presence of trained dogs.

In Senate hearings on May 12, Deputy Defense Secretary Paul Wolfowitz and Gen. Peter Pace. vice chairman of the Joint Chiefs of Staff, admitted that some of these practices might be violations of the Geneva Conventions. Wolfowitz conceded that sensory deprivation – having a bag placed over one's head – for 72 hours was “not humane.”

There was no suggestion in the official document that keeping prisoners naked was an officially sanctioned policy. According to a report in the military journal Stars & Stripes, Maj. Gen. Geoffrey Miller, who has been put in charge of detention and interrogation in Iraq , said that it was never authorized for prisoners to be naked except during the initial search after their capture. Nevertheless this appears to have been a widely practiced policy.

On Friday May 14, the Pentagon announced that Gen. Sanchez had forbidden the use of most of the harsher interrogation measures that supposedly required his personal authorization. His order stated that he would no longer consider any requests to approve extraordinary interrogation methods except for the use of solitary confinement for more than 30 days. Sanchez' office also said that since October he had approved 25 requests for the use of special measures, and that all were requests to hold detainees in isolation for longer than 30 days.

The statements from Sanchez do not explain how some of these techniques (as well as holding detainees naked, which was supposedly never authorized) came to be practiced in what appears to have been a routine way at Abu Ghraib, nor whether the authorities took any steps in response to the regular communications they received from the ICRC about their use. It is hard to avoid the conclusion that a climate was created at the prison where practices that seem like clear breaches of the Geneva Conventions were carried out with impunity and with the apparent approval of superiors. In the most sensational cases (the ones that are now the subject of criminal proceedings) a few individuals have been charged. But the more general approach to the interrogation of detainees remains unaccounted for.

The War on Terror

News accounts in recent days have explained the use of legally questionable interrogation tactics in Iraq as a kind of spillover from the “global war on terror.” According to reports in the New Yorker and Newsweek, a “secret system of interrogation and detention” was set up in the aftermath of 9/11 to handle captured al-Qaeda suspects. These reports and others describe a world-wide network of clandestine interrogation centers where suspects like Khalid Shaikh Mohammed are subjected to measures such as “water-boarding” where they are submerged under water and made to believe they might drown. News stories have also detailed the practice of “rendering” where suspects are handed over to third countries so they can be interrogated more harshly than U.S. law permits.

Newsweek also revealed that the White House legal counsel, Alberto Gonzales, suggested in a memo to President Bush in January 2002 that the need “to quickly obtain information from captured terrorists and their sponsors…renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions.” In the event, the White House decided that it would apply the provisions of the Geneva Conventions to Taliban fighters captured in Afghanistan, but not to al-Qaeda suspects who were “unlawful combatants.” Nevertheless it said that al-Qaeda suspects would be treated according to humanitarian standards consistent with the Geneva Conventions.

In any case, as argued above, international law places strict obligations on any country holding military detainees, even when the Geneva Conventions as such do not apply. There is still an obligation to treat detainees humanely, and not to subject them to cruel and degrading treatment. It is absolutely prohibited to subject them to torture, or any measure which would be regarded as “cruel, unusual or inhumane” in U.S. law. It is also forbidden to transfer anyone to the control of a country where there is reason to believe they would be tortured.

The alleged “water-boarding” of Khalid Shaikh Mohammed would appear to be illegal under international law prohibiting torture (“severe pain or suffering, either physical or mental.”) and in the context of armed conflict might constitute a war crime. In addition, the use of so-called “stress and duress” techniques in Afghanistan, Guantanamo Bay and elsewhere is inconsistent with most traditional understandings of international law standards both in the Geneva Conventions and customary international law.

News reports have also claimed that in the case of Abu Zubaida, a senior al-Qaeda member captured in Pakistan in March 2002 after a shootout in which he was wounded in the groin, interrogators withheld painkillers from him to induce him to cooperate.  This appears to be a violation of the requirement in Common Article 3 that the wounded should be cared for.

The promulgation of new guidelines for interrogation of al-Qaeda suspects in the war on terror led a group of military lawyers to organize a secret meeting with Scott Horton of the New York City Bar Association in the spring of 2003. According to news reports, they urged him to challenge the Bush administration about its standards for interrogation and detention, which they felt were a dangerous departure from the United States ' historic approach to international law.

“They said there was an atmosphere of legal ambiguity being created as a result of a policy decision at the highest level in the Pentagon,” Horton told the New Yorker.

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