The ICRC on Common Article 3

by Katherine

(third in a series)

Several of the people I quoted in the previous post claimed that Supreme Court's holding on Common Article 3 "undermined" the Geneva Conventions. Rather than answer this argument myself, I thought I'd let the International Committee of the Red Cross (ICRC) handle it. The Geneva Conventions would not exist without the ICRC. The Red Cross is specifically named in the 1949 Conventions, and specifically given the legal right to visit prisoners and offer assistance to victims of war. There is no organization in the world better qualified to say what the letter and spirit of the Geneva Conventions require.

Here are some excerpts from the ICRC's official commentary on Common Article 3:

This Article, which is common to all four Geneva Conventions, marks a new step forward in the unceasing development of the idea on which the Red Cross is based, and in the embodiment of that idea in international obligations....

Up to 1949, the Geneva Conventions were designed to assist only the victims of wars between States. The principle of respect for human personality, the basis on which all the Conventions rest, had found expression in them only in its application to military personnel. Actually, however, it was concerned with people as human beings, without regard to their uniform, their allegiance, their race or their beliefs, without regard even to any obligations which the authority on which they depended might have assumed in their name or in their behalf....

To borrow the phrase of one of the delegates, Article 3 is like a "Convention in miniature"...It is very different from the original draft produced by the International Committee of the Red Cross, which provided for the application of the Conventions in their entirety. But the wording finally adopted was certainly the best amongst the various drafts prepared during the Conference. It has the merit of being simple and clear. It at least ensures the application of the rules of humanity which are recognized as essential by civilized nations and provides a legal basis for interventions by the International Committee of the Red Cross or any other impartial humanitarian organization -- interventions which in the past were all too often refused on the ground that they represented intolerable interference in the internal affairs of a State. This text has the additional advantage of being applicable automatically, without any condition in regard to reciprocity. Its observance does not depend upon preliminary discussions on the nature of the conflict or the particular clauses to be respected. It is true that it merely provides for the application of the principles of the Convention, but it defines those principles and in addition lays down certain rules for their application. Finally, it has the advantage of expressing, in each of the four Conventions, the common principle which governs them....

the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party. It merely demands respect for certain rules, which were already recognized as essential in all civilized countries, and embodied in the national legislation of the States in question, long before the Convention was signed. What Government would dare to claim before the world, in a case of civil disturbances which could justly be described as mere acts of banditry, that, Article 3 not being applicable, it was entitled to leave the wounded uncared for, to torture and mutilate prisoners and take hostages? No Government can object to observing, in its dealings with enemies, whatever the nature of the conflict between it and them, a few essential rules which it in fact observes daily, under its own laws, when dealing with common criminals....no Government can possibly claim that it is ' entitled ' to make use of torture and other inhuman acts prohibited by the Convention, as a means of combating its enemies.

I do not expect this to convince people who believe that freedom from torture and cruelty are "privileges" and "rewards" that must be earned, or that people accused--accused--of belonging to Al Qaeda "belong in a black hole". (Where I guess they can be beaten and waterboarded until they say "uncle" and agree to stop torturing prisoners and murdering civilians? I'm unclear on exactly how this is supposed to work.) But could they maybe give us just a small break, and stop pretending that they're doing this out of regard for human dignity and the Geneva Conventions?

Comments

[Sebastian Holsclaw]

The Geneva Conventions would let us try and execute unlawful combatants. We just have to go through the proper procedure. We should consider doing that.

[Jesurgislac]

The Geneva Conventions would let us try and execute unlawful combatants.

The Geneva Conventions make no reference to unlawful combatants, to the best of my knowledge. Which clause are you citing? Handy reference for your convenience.

[st]

The interesting thing about this excerpt to me is that it tends to support the Hamdan dissent's (and the DC Circuit's) reading of Common Article 3's application only to conflicts "not of an international character."

The majority construed Article 3's limitation to "conflicts not of an international character" as being "in contradistinction to a conflict between nations," i.e. Article 3 only applied to wars other than those declared between established states. This definition clearly would apply to the US war against al Qaeda in which Hamdan was taken.

The dissent averred that "conflicts not of an international character" meant internal conflicts, civil wars, etc. and the U.S. intervention in Afghanistan could not be described as an internal conflict. The Red Cross excerpt (with its references to "the internal affairs of a state," "rebels," and "civil disturbances") seems to support the dissent's reading.

If the ICRC is indeed the best qualified entity to construe Article 3, this construction tends to cut against the Hamdan majority. I'm just saying.

[OCSteve]

My biggest problem with this (other than it is obvious that only one side in this conflict is to be held to this standard) is this gem:

“outrages upon personal dignity, in particular humiliating and degrading treatment”

The problem is, who decides what constitutes “humiliating and degrading treatment”? When you come from a culture of forever being the victim, pretty much everything is humiliating and degrading.

We have seen riots and violence over cartoons and a book. We have hunger strikes over “alleged desecration of a copy of the Koran”.

That phrase (“humiliating and degrading treatment”) is so open to misuse and it is pretty much entirely defined by the accuser, is it not?

Standard disclaimer – I am against true drill through the kneecap, fun with dental instruments and electrodes torture. But we have seen the definition of torture defined downward again and again. That is bad enough – but now we should worry about doing anything that someone in this culture would find “humiliating and degrading treatment”, which is damn near anything.

Does a male Muslim being questioned by a female interrogator or a guard moving a Koran without putting on white gloves rise to the level of a war crime punishable by life in prison? That is what we are talking about here.

[Anderson]

My biggest problem with this (other than it is obvious that only one side in this conflict is to be held to this standard) is this gem:

“outrages upon personal dignity, in particular humiliating and degrading treatment”

Steve, we are not letting the ghost of Johnnie Cochran tell us what's outrageous, humiliating, or degrading. The premise, your implicit moral relativism aside, is that there's some treatment that You Just Know is outrageous, humiliating, or degrading.

Like waterboarding. Like pretending to rub menstrual blood on men's faces. Like attaching wires to a hooded prisoner and telling him he'll be electrocuted if he doesn't stand, arms outstretched, for hours.

What do you find hard about that? Are these not outrageous, humiliating, or degrading where you come from?

[Jesurgislac]

OCSteve: The problem is, who decides what constitutes “humiliating and degrading treatment”? When you come from a culture of forever being the victim, pretty much everything is humiliating and degrading.

Sure: we see this with right-wing evangelical Christians, who come from a culture of forever being the victim, and really do see pretty much everything as humiliating and degrading - even claiming that shop assistants saying "Happy holidays" instead of "Merry Christmas" amounts to persecution.

However, it's hard to see how you can apply this with any seriousness to Middle East cultures, so let's pass on.

That phrase (“humiliating and degrading treatment”) is so open to misuse and it is pretty much entirely defined by the accuser, is it not?

Nope. If you read anything about the treatment dished out to prisoners at Guantanamo Bay, aside from the right-wing fantasies about it being a holiday camp, you'll discover that in fact the prison guards were defining “humiliating and degrading treatment” pretty carefully themselves.

Very much to the point: ignorantly picking up a copy of the Qu'ran and mishandling it because you are from a Christian culture and know no better is not "humiliating and degrading treatment" - it's ignorance that should be remedied to avoid upsetting the prisoner to whom the Qu'ran is a sacred book.

Deliberately mishandling the Qu'ran (as Newsweek accurately reported had happened in Guantanamo Bay) in order to distress, degrade, or humiliate a Muslim prisoner is humiliating and degrading treatment.

It's ironic that Newsweek felt they had to apologize for a minor mistake in an accurate report, when Repulican lies get disseminated as truths without apology.

The difference is that a guard who behaves ignorantly will be sent to the Muslim chaplain to be told better, reprimanded if he does it again; a guard who deliberately uses a Muslim's reverence for the Qu'ran as a form of torture will not be reprimanded.

It's ironic that Newsweek felt it should apologize for one minor error in an otherwise accurate report.

[OCSteve]

Are these not outrageous, humiliating, or degrading where you come from?

My point is that the accuser defines it, violation of CA3 is considered a war crime, and as it does not involve death in this case the punishment is life in prison.

Are the ICRC and HRW going to give us a list of what they consider to be legitimate violations?

HRW from May 05 – here they specifically mention “religious humiliation”, “humiliating Muslim prisoners by offending their religious beliefs”, “forced grooming (shaving of facial hair, etc.)”, “U.S. interrogators disrespected the Koran”, etc. etc. And they explicitly tie these “abuses” to violations of CA3. They also mention the fake menstrual blood and dogs etc., which are more legitimate IMO. But “religious humiliation”?

My question is, when two cultures are so different, who is the arbitrator? Who decides what really is humiliation?

I am not exaggerating the case here – the article I linked has them pushing these very claims over a year ago.

Is dropping a book on the floor a crime worthy of life in prison where you come from?

[Jesurgislac]

OCSteve: My question is, when two cultures are so different, who is the arbitrator? Who decides what really is humiliation?

"Two cultures"? Steve, according to the CIA World Factbook, there are nearly 3 million Muslims in the US. One of them was even serving for a time at Guantanamo Bay as chaplain. Islamic culture is part of American culture - if Guantanamo Bay guards are required to avoid accidental religious offense to Muslim prisoners, there are literally millions of Americans to explain how.

Are you arguing that deliberately offending a person of faith's religious beliefs in order to degrade and humiliate them somehow ought to be exempt? If so, is this an argument you wish to make for all religions, including Christianity, or is Islam the only one you're arguing against?

[hilzoy]

And Steve: why do you say that the accuser gets to define what counts as humiliating and degrading?

[OCSteve]

If so, is this an argument you wish to make for all religions, including Christianity, or is Islam the only one you're arguing against?

All religions. As I see it, the problem is the opposite of your statement. Only Muslims expect this special treatment of their religion by those not part of that religion. Correct me if I am wrong but I know of no others.

Sorry, but I just can’t get my mind around making war crimes out of such things as verbal abuse, grooming, and respect of religion.

[OCSteve]

And Steve: why do you say that the accuser gets to define what counts as humiliating and degrading?

What an individual finds humiliating and degrading is very personal to that individual isn’t it? If I say that I find white cotton sheets on my cot humiliating and degrading, who is to say that is not so?

If I say that my religion requires me to consume beer and smoke cigarettes, and that by not providing me with those items you are intentionally degrading my religion – who can say that is not true?

[Jesurgislac]

OCSteve: As I see it, the problem is the opposite of your statement. Only Muslims expect this special treatment of their religion by those not part of that religion. Correct me if I am wrong but I know of no others.

You're kidding me, right? I mean, there are evangelical Christians right in the US who expect special treatment of their religion by those not part of their religion: not merely not to have their beliefs not personally offended (as a Catholic priest would expect a non-Christian not to desecrate the Host) but even to have their own religious beliefs given the force of law - even to have them written into the US Constitution. This is special treatment to an egregious degree - against which merely requiring a non-Christian not to deliberately trample the Host underfoot, or a non-Muslim not to deliberately mishandle the Koran, looks to me like simple politeness.

[Jesurgislac]

If I say that my religion requires me to consume beer and smoke cigarettes, and that by not providing me with those items you are intentionally degrading my religion – who can say that is not true?

If a Catholic priest says that his religious requires him to say certain words over a cup of wine and a piece of bread, and that thereafter the wine and the bread are literally the Blood and the Body of his God, and disrespectful treatment of his God is intentionally degrading to his religion, who can say that is not true?

[Steve]

What OCSteve is doing, inadvertently or otherwise, is conflating intentional humiliation with accidental or pretend affronts.

If you shave a man's facial hair because you know it's degrading to a Muslim, you can't act all innocent and say "Who is he to define what's humiliating?" The fact is, if the prisoner didn't define the act as humiliating, you wouldn't bother doing it to him!

Obviously, there will always be disputes and disagreements around the margins of any rule, but that's not a reason to not have the rule in the first place. The vast majority of what's been reported in terms of abuses is simply flat wrong and shouldn't be happening. It's not an answer to point to the 5% of incidents that you feel are minor humiliations and use them to suggest that the prohibition shouldn't exist in the first place. They are the exception, not the rule.

[OCSteve]

You're kidding me, right? I mean, there are evangelical Christians right in the US who expect special treatment of their religion by those not part of their religion: not merely not to have their beliefs not personally offended (as a Catholic priest would expect a non-Christian not to desecrate the Host) but even to have their own religious beliefs given the force of law - even to have them written into the US Constitution.

And I think they are whackos too. But they don’t riot and kill people when it happens.

Let me put it this way… If there is a Christian right now in Gitmo and a guard tore up a bible in front of him in an attempt to deliberately offend his religion, and anyone suggested that was a war crime, I would think it was completely nuts.

[Anderson]

Gosh, OCSteve, I guess it was Pretty Darn Stupid of the Congress to incorporate CA3 into the War Crimes Act. Too bad you weren't there to stop them!

[Jesurgislac]

OCSteve: And I think they are whackos too. But they don’t riot and kill people when it happens.

Nice duck and dodge, OCSteve. Moving on:

If there is a Christian right now in Gitmo and a guard tore up a bible in front of him in an attempt to deliberately offend his religion, and anyone suggested that was a war crime, I would think it was completely nuts.

How would you feel about it if a Catholic was in Guantanamo Bay and a guard deliberately knocked the Host into the dirt when the Catholic was receiving Communion? Would you think that Catholic protestors ought to just "get over it"? I'm an atheist, Steve, but I acknowledge that other people have strong religious feelings. You appear to be arguing that because you don't, no one else should.

[Jesurgislac]

OCSteve: And I think they are whackos too. But they don’t riot and kill people when it happens.

Sure they do. Examples of Christians rioting and killing for your convenience. And note that this is not a question of a prison guard deliberately violating a Christian's belief in order to degrade/humilitate the prisoner, which you say shouldn't be a crime: this is whackjobs rioting and killing other people to enforce their beliefs on them.

[OCSteve]

How would you feel about it if a Catholic was in Guantanamo Bay and a guard deliberately knocked the Host into the dirt when the Catholic was receiving Communion?

I would wonder why I was even hearing about it.

Would you think that Catholic protestors ought to just "get over it"?

I don’t think there would be any Catholic protestors. Possibly some, but I doubt it, and I know that they would not riot and kill people. Would HRW issue a press release condemning it? Would the ICRC take issue with it?

You appear to be arguing that because you don't, no one else should.

I think my problem is that I don’t think these conventions, written in 1949, really aged all that well. I think in 49 more people would agree on what was really an offense. But in the PC world of 06, everything is a serious offense to someone. And I can’t even suggest that CA3 (and the entire GC in general) should be updated for modern times because that would result in the most politically correct document ever conceived.

Bottom line – I think that if we don’t put some solid parameters around what constitutes a real offense this thing is just going to be used to tie us up in knots.

[Jesurgislac]

OCSteve: I don’t think there would be any Catholic protestors. Possibly some, but I doubt it, and I know that they would not riot and kill people. Would HRW issue a press release condemning it?

They would and they have (no doubt there are other examples on the HRW website: this one was just the first to come up).

Would the ICRC take issue with it?

Er, you really think they wouldn't? Is this a serious argument?

[Kevin Donoghue]

If I say that I find white cotton sheets on my cot humiliating and degrading, who is to say that is not so?

The jury.

[Jesurgislac]

OCSteve: Bottom line – I think that if we don’t put some solid parameters around what constitutes a real offense this thing is just going to be used to tie us up in knots.

Well, most religions do in fact have solid and well-known parameters about what constitutes a real offense. Islam does: Christianity does: Hinduism does: Judaism does. Further, while there may be disagreement about what constitutes a real offense when other people do it and you know about it (as the "real offenses" that American evangelical Christians riot about tend to consist of) but little disagreement about what constitutes a real offense when done to a captive by a guard. And as Kevin Donoghue observes, the jury gets to decide if a prisoner's religion was violated deliberately to degrade and humiliate, or accidentally/in ignorance.

[hilzoy]

OCSteve: in a lot of parts of the law, if I'm not mistaken, terms like "threatening" or "humiliating" and so forth are defined with respect to what a reasonable person would find to be threatening/humiliating/etc. I think this is why e.g. the excuse of acting in self-defense isn't vulnerable to the question: geez, if I think that by breathing, you're attacking me in a way that might kill me, who's to say I'm wrong? -- even though I think that what matters for that defense is not whether there was an actual threat to life and limb, but whether a reasonable person would have thought there was. (E.g.: if someone comes at me waving a gun in the streets at night and saying "I'm going to kill you!", and it turns out that the "gun" is just a very realistic facsimile, and so there was in fact no threat at all, I can act in self-defense.)

I don't see why the same wouldn't apply here.

[Steve]

The jury doesn't get to decide, because no prosecutor is going to be bringing charges just because some prisoner claims that the white sheets on his cot were an affront to his religion.

In our domestic prison system, a guard certainly can be convicted of a crime for doing something sufficiently awful to a prisoner, yet we hardly see prison guards on trial every day.

[Uncle Kvetch]

Is dropping a book on the floor a crime worthy of life in prison where you come from?

No. But if the Republicans in Washington get their way, someday setting a piece of cloth on fire will be.

[Slartibartfast]

Two sides of the same coin, then.

[Donald Johnson]

Burning a flag in front of a patriotic, flagwaving prisoner in order to humiliate him would be degrading treatment, similar to the deliberate desecration of the Koran in front of a Muslim. Both actions are wrong. Is that what you mean, Slarti?

[that's]

bless you for this series, Katherine.

[Slartibartfast]

Perhaps, in the sense that neither of these things really rise to the level of what I think of as "war crimes". Maybe not consistent with the law, but there it is.

[Nell]

@ OCSteve: The SERE training received by some U.S. forces (which clearly, twisted, formed the basis for the treatment of the men and boys held at Guantanamo) included desecration of a Bible.

The training was meant to subject trainees to situations that would be humiliating, outrageous, and degrading.

Jane Mayer's New Yorker article from 2005 about the participation of medical personnel and psychologists also goes into some detail about the SERE training as the basis for the Guantanamo treatment. Perhaps someone here can provide a link? I have an errand in town.

[Gary Farber]

"Perhaps someone here can provide a link?"

I live to serve. See here.

(I linked here.)

[SomeOtherDude]

DaveC wrote:

I think my problem is that I don’t think these conventions, written in 1949, really aged all that well. I think in 49 more people would agree on what was really an offense. But in the PC world of 06, everything is a serious offense to someone.

Are you arguing that morality is relative to time?

[Noumenon]

Katherine: Is this commentary that was written contemporaneously with the Third Common Article, or was it produced recently by the ICRC?

Various articles attacking the ICRC have made me suspicious that it's acting as a partisan. The smear has stuck.

[Nell]

Thanks very much, Gary. OCSteve, this is the passage I was remembering:

Yet many of the interrogation methods used in SERE training seem to have been applied at Guantánamo. One component of the training program, called the “religious dilemma,” parallels Guantánamo detainees’ chronic complaints about Koran abuse. At SERE, trainees in the Level C course are given the choice of seeing a Bible desecrated or revealing secrets to interrogators. “They are challenging your faith,” the SERE affiliate explained. “The Holy Book is torn up. They say they’ll stop if you talk. Sometimes they rip the Bible and throw it in the air.” The goal is to make detainees react emotionally to the desecration. Some trainees who are devout Christians become profoundly disturbed during the exercise.

@Noumenon: The burden is on you to support the position that the Red Cross is playing a partisan role with some evidence, not Hilzoy's to disprove a vague smear you heard somewhere.

[Nell]

Sorry, not Katherine's responsibility to disprove a vague smear.

[Nell]

@Noumenon: The ICRC commentary on Common Article 3 appears to be contemporary, written at the time the conventions entered into force in 1950. Katherine will no doubt correct this if I'm mistaken.

[Noumenon]

Thanks, Nell, I just wanted the factual answer about when it was written. The part about the smear was just explaining why I think it's relevant: it's much more persuasive if this was the 1950 Red Cross telling the original intent at the time, than if it's the current Red Cross which some would see as taking sides in a political argument.

[KCinDC]

Oh, smears can be retroactive. Remember it was fine at the time of the VP debate in 2004 for Edwards to respond to Ifill's question about Cheney's daughter -- Cheney even thanked him for his kind words -- but shortly thereafter, when Kerry mentioned it, Edwards retroactively became guilty of a vicious attack on Cheney's family.

I'm sure those who think the ICRC is part of a vast left-wing conspiracy have no trouble believing it was part of the conspiracy back in 1950 as well.

[Dantheman]

It appears that the good guys may have actually won this one.