April 7, 2005

“Joint Doctrine for Detainee Operations: Joint Publication 3-63” (hereinafter JP 3-63), dated March 23, 2005, is a draft document that purports to give “authoritative guidance” that takes precedence over any conflicting armed service publications. Human Rights Watch is deeply concerned that JP 3-63 on its face contravenes the Geneva Conventions. By acting according to its provisions, U.S. military personnel may be committing grave breaches of the Geneva Conventions and placing themselves at risk of prosecution for war crimes.

“Joint Doctrine for Detainee Operations: Joint Publication 3-63” (hereinafter JP 3-63), dated March 23, 2005, is a draft document that purports to give “authoritative guidance” that takes precedence over any conflicting armed service publications. Human Rights Watch is deeply concerned that JP 3-63 on its face contravenes the Geneva Conventions. By acting according to its provisions, U.S. military personnel may be committing grave breaches of the Geneva Conventions and placing themselves at risk of prosecution for war crimes. For instance, improperly trying a person unlawfully denied prisoner-of-war status is a grave breach under article 130 of the Third Geneva Convention. Unlawful confinement or deportation of a person entitled to “protected person” status is a grave breach of article 147 of the Fourth Geneva Convention.

The U.S. government’s decision in January 2002 to disavow the applicability of the Geneva Conventions in the global war on terror and the effective creation of a “new category of detainee” has been at the root of the widespread and serious mistreatment of detainees in Iraq, Afghanistan and at Guantánamo Bay. JP 3-63 formalizes the enemy combatant category and combines with it measures to diminish the likelihood that detainees will be mistreated. While we welcome many of the new measures, the recast legal framework remains a fundamental problem. This departure from longstanding law, particularly one deeply imbued in the training and practice of U.S. armed forces, will invariably lead to further abuses.

Moreover, JP 3-63 will send a message to the world that the Geneva Conventions are not law, but mere policies that can be changed according to tastes of a particular government. Disregarding fundamental principles will in particular suggest that all provisions of the Conventions are subject to unilateral modification. Whether or not this would affect the behavior of terrorist organizations, it will have a profound impact on future armed conflicts between states and the soldiers and civilians affected by them, including Americans.

JP 3-63 contains provisions on detention that are a clear improvement on current U.S. military practice. Yet the flaws in the draft are fundamental. Human Rights Watch urges that the JP 3-63 be modified to conform in full to the requirements of the Geneva Conventions. Among the most troubling features of JP 3-63 are the following:

1. Category of Enemy Combatant

JP 3-63 provides for a category of detainee, “enemy combatant,” that is denied the protections of the Geneva Conventions. As background to its creation, JP 3-63 states: “Following the events of September 11, 2001, a new category of detainee, enemy combatant (EC), was created for personnel who are not granted or entitled to the privileges of the Geneva Convention. [sic]”

The four Geneva Conventions leave no category of detainee unprotected. Captured combatants who do not qualify as prisoners of war are not entitled to certain privileges, and may be prosecuted for taking up arms. However, with few exceptions they are still entitled to “protected person” status under the Fourth Geneva Convention. The interpretation of this provision in The Law of Land Warfare, Field Manual 27-10, par. 247, states: “[T]hose protected by Fourth Geneva also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.” While there may be persons captured during an armed conflict who are excluded from the definition of “protected persons,” these exceptions are very narrow and bear no relation to the notion of “enemy combatant” as this administration has used the term.

According to the ICRC commentary to the Fourth Geneva Convention:

    Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.

2. Designation of Enemy Combatant

The draft cites the Deputy Secretary of Defense global screening criteria of February 20, 2004 as denominating for the purpose of the global war on terror enemy combatants as including, but not necessarily limited to, “a member or agent of Al Qaeda, Taliban, or another international terrorist organization against which United States [sic] is engaged in an armed conflict” and refers to the list of terrorists and terrorist groups under Executive Order and the State Department’s annual Patters of Global Terrorism list (JP 3-63 at I-12). The draft then states unequivocally, “Anyone detained that is affiliated with these organizations will be classified as an EC.”

In addition, “there are individuals that may not be affiliated with the listed organizations that may be classified as an EC. On these specific individuals, guidance should be obtained from higher headquarters.”

This definition of enemy combatant is troubling in many respects. The Executive Order and State Department lists are designed to block material aid to organizations and individuals designated as terrorists. They have been criticized, and indeed challenged in the courts, for being vague, overbroad, and for their being no transparent criteria for listing entities on the lists or removing entities from the lists. The list contains generalized names and aliases (for instance, “Mohammad Zia” and “Abdullah Ahmed”) that are shared by tens of thousands of persons worldwide. The lists also name entities that are neither at war with nor engaged in terrorism against the United States; for example, the Basque separatist group Euzkadi Ta Askatasuna (ETA), the Sword of David or American Friends of the United Yeshiva Movement; and the Real Irish Republican Army. Among these are groups which are no longer active, like the Indian Sikh group International Sikh Youth Federation.

Moreover, the designation covers not only those listed but those “affiliated” with those listed, without any definition of what such affiliation entails, or why there would be a nexus to combatant status thereby. JP 3-63 provides no guidance on how such affiliation would be judged. The text suggests that sending a donation to a questionable organization would transform the donor into an enemy combatant.

Furthermore, permitting any person to be classified as an enemy combatant, whether or not they are affiliated with the listed organizations, effectively allows the Defense Department to ignore, unlawfully and without any basis whatsoever, the objective standards for prisoner of war and protected person under the Geneva Conventions.

The implication that flows from this categorical approach to designating “enemy combatants” is that if these individuals may be detained under a special legal regime, they are “combatants” for other purposes, such as the employment of military force against them. We have consistently objected to the notion that the United States may use military force, rather than law enforcement, against criminal suspects far from any battlefield.

The categorical approach to designation of “enemy combatants” is inconsistent with the procedures set out in JP 3-63 (IV-9) to determine status of certain detainees by means of a competent tribunal, as required by the Third Geneva Convention, article 5.

3. Qualified Duty of Humane Treatment of Enemy Combatants

The draft specifies that enemy combatants “are still entitled to be treated humanely, subject to military necessity, consistent with the principles of GC” (JP 3-63 at I-11). The principle of humane treatment applies without qualification, including the qualification of military necessity, to all detainees regardless of status. As we have stated above, the Geneva Conventions apply directly to combatants not entitled to the privileges of POW status. This also contradicts the statement in the draft’s introductory chapter that “there is no military necessity exception to this humane treatment mandate” (JP 3-63 at I-4).

4. ICRC Access to Enemy Combatants

The draft also provides a basis for denying access to the International Committee of the Red Cross (ICRC) to all detainees in contravention of the Geneva Conventions. It specifies access to those groups it recognizes as “protected persons,” namely POWs, civilian internees, retained personnel, and the wounded and sick, and then states:

    Because it is probable that the legal status of detainees will not be established, the DOD policy to treat such detainees as if they were EPWs [enemy prisoners of war], coupled with the obligation to ensure they are treated humanely, justifies extending the right of access, as a matter of national policy, to all detainees.

This wording indicates that once the “enemy combatant” status of a detainee is established, the ICRC can be denied access. All detainees are entitled to access by the ICRC as a matter of law, specifically article 125 of the Third Geneva Convention, and article 142 of the Fourth Geneva Convention.

***

The U.S. government’s decision to place certain individuals outside the Geneva Conventions, even alongside assurances of humane treatment, has had detrimental consequences which became public with the revelations of the “Abu Ghraib scandal” a year ago. As former State Department legal advisor William H. Taft IV said on March 24, 2005 at American University:

    It has been a continuing source of amazement and, I may add, considerable disappointment to me that, notwithstanding the stated intention of the Pentagon’s leadership to comply with the requirements of the Conventions without qualification, lawyers at the Department of Justice thought it was important to decide at that time that the Conventions did not apply to al Qaeda as a matter of law and to qualify the commitment to apply them as a matter of policy to situations where this was “appropriate” and “consistent with military necessity.” This unsought conclusion unhinged those responsible for the treatment of the detainees in Guantánamo from the legal guidelines for interrogation of detainees reflected in the Conventions and embodied in the Army Field Manual for decades.

Now it seems, instead of returning to the legal framework that would have ensured that detainees in U.S. custody would not have been abused, the Department of Defense is simply changing the manuals. We urge you to modify this document so that it conforms with the requirements of the Geneva Conventions. We would be happy to meet with Defense Department officials to discuss our concerns further.

Sincerely,

Kenneth Roth
Executive Director