Geneva Conventions and the Military Commissions Act of 2006

Some wonder how the Military Commissions Act of 2006 (S. 3930) violates the Geneva Conventions.

I am not a legal scholar, but it seems as if the proposed legislation violates the following components of the Geneva Conventions. All of the following are quoted from Geneva Conventions - Society for Professional Journalists. Only pertinent components included.

access to prisoners of war

Captured medical personnel or members of the Red Cross or other aid organizations must be allowed to periodically visit prisoners of war in labor units or hospitals outside the camp. (Convention I, Art. 28a )

Representatives of the protecting powers shall have permission to visit all places where prisoners of war may be, particularly to places of internment, imprisonment and labor. They must be able to interview the prisoners without witnesses, either personally or through an interpreter. ( Convention III, Art. 126)

amnesty

No party to the Geneva Conventions can absolve itself, or another party, of liability for grave breaches of the Geneva Conventions. ( Convention I, Art. 51; Convention II, Art. 52; Convention III, Art. 131; Convention IV, Art. 148)

attorneys

Prisoners of war must have the right to legal advice, particularly in the case of preparing powers of attorney and wills. ( Convention III, Art. 77)

Those children who do participate in hostilities do not lose their protections under the Geneva Conventions, including the right to an education. (Protocol II, Art. 4, Sec. 3d)

Children who have committed an offense related to the armed conflict before their 18th birthday cannot be subject to the death penalty. (Protocol I, Art. 77, Sec. 5)

If arrested, detained or interned, children must be held in separate quarters from adults, unless they are with their families. (Protocol I, Art. 77, Sec. 4)

baths

Prisoners of war must have access to baths and showers, as well as sufficient soap and water for personal toilets and for laundry. Women prisoners must have separate facilities. ( Convention III, Art. 29)

The above also applies to internees. ( Convention IV, Art. 85 )

censorship

Letters written by prisoners may be censored but a detaining power cannot use the excuse of not having enough translators to limit the number of letters that prisoners are allowed, unless the protecting power agrees. (Convention III, Art. 71)

The censoring must take place as quickly as possible by the dispatching state and the receiving state, and only once by each. The examination of packages must take place in the presence of a prisoner or a prisoner's chosen representative. Any prohibition of correspondence must be temporary and as short as possible. (Convention III, Art. 76)

children

Parties to a conflict must respect children, provide them with any care or aid they require, and protect them from any form of indecent assault (Protocol I, Art. 77, Sec. 1).

Similar guidelines apply to internees' mail. (Convention IV, Art. 112)

The same applies to civilian internees. ( Convention IV, Art. 113 )

Military commanders must have access to legal advisers to instruct them on the application of the Geneva Conventions. ( Protocol I, Art. 82)

civilian immunity

Civilians have special protections under Convention IV, Protocol I, and Protocol II.

They must be treated humanely, without discrimination based on race, color, religion or faith, sex, birth or wealth, or other similar criteria.

Violence to life and person including murder, mutilation, cruel treatment and torture are prohibited.

The taking of hostages is prohibited.

Outrages upon personal dignity, including humiliating and degrading treatment are prohibited.

Sentences and executions without a judgment from a regularly constituted court and without benefit of the standard judicial guarantees are prohibited. (Convention IV, Art. 3)

civilian

A civilian is any person who does not belong to any of the following categories: members of the armed forces, militias or volunteer corps, organized resistance movements, and residents of an occupied territory who spontaneously take up arms. If there is any doubt whether a person is civilian, then he or she is to be considered a civilian. (Protocol I, Art. 50, Sec. 1)

clothing for prisoners of war

Prisoners must be supplied with clothing, underwear and footwear that is both sufficient and suitable for the climate. (Convention III, Art. 27)

Prisoners of war must not be forced to give up their own clothing, even if it is military issue. (Convention III, Art. 18)

coercion

Prisoners of war may not be tortured mentally or physically, and no other form of coercion may be used during interrogation. Prisoners of war who refuse to answer must not be punished in any way. (Convention III, Art. 17)

Prisoners of war may not be tortured or coerced into admitting guilt during a judicial proceeding. (Convention III, Art. 99)

Civilians must not be tortured or coerced, particularly to obtain information from them or third parties. (Convention IV, art. 31)

combatant status

Combatants have protections under the Geneva Conventions, as well as obligations.

Convention I offers protections to wounded combatants, who are defined as members of the armed forces of a party to an international conflict, members of militias or volunteer corps including members of organized resistance movements as long as they have a well-defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war. (Convention I, Art. 13, Sec. 1 and Sec. 2)

Convention III offers a wide range of protections to combatants who have become prisoners of war. (Convention III, Art. 4)

For example, captured combatants cannot be punished for acts of war except in the cases where the enemy's own soldiers would also be punished, and to the same extent. (Convention III, Art. 87)

See prisoner of war for a list of additional protections.

Possible Exception, but then would fall under civilian However, other individuals, including civilians, who commit hostile acts and are captured do not have these protections. For example, civilians in an occupied territory are subject to the existing penal laws. (Convention IV, Art. 64)

But the above may possibly overridden by this The 1977 Protocols extend the definition of combatant to include any fighters who carry arms openly during preparation for an attack and during the attack itself, (Protocol I, Art. 44, Sec. 3) but these Protocols aren't as widely accepted as the four 1949 conventions.

In addition to rights, combatants also have obligations under the Geneva Conventions.

Although all combatants are required to comply with international laws, violations do not deprive the combatants of their status, or of their right to prisoner of war protections if they are captured. (Protocol I, Art. 44, Sec. 2)

concentration camps

Concentration camps, though not mentioned explicitly in the Geneva Conventions, violate a number of provisions, including those concerning unlawful confinement and due process.

confinement

Prisoners of war may be confined as a disciplinary punishment, except where it would be inhuman, brutal, or dangerous to their health. (Convention III, Art. 88)

Prisoners of war may not be held in close confinement except for reasons of health, and then only as long as medically necessary. (Convention III, Art. 21)

A prisoner may be confined for no more than 30 days at a time, with a minimum of three days before any additional punishment. (Convention III, Art. 90)

No prisoner shall spend more than 14 days in confinement waiting the resolution of a disciplinary offense. (Convention III, Art. 95)

Women prisoners shall be confined separately and under the supervision of women. (Convention III, Art. 97)

Internees may also be confined as a disciplinary punishment, with similar limitations as for prisoners of war. (Convention IV, Art. 117, Art. 124 and Art. 125)

Unlawful confinement of civilians is a grave breach of the Geneva Convention. (Protocol IV, Art. 147)

crimes against humanity

War crimes are against the customary laws of war which are applicable in any conflict, regardless of whether the country in question is a signatory to the Geneva Convention. They include the rights listed in the common article 3 of the Geneva Conventions (Convention I, Article 3) and the basics of human rights law - freedom from torture, mutilation and rape, slavery, and willful killing. Customary law also forbids genocide, crimes against humanity, as well as war crimes.

death sentences

Prisoners of war and the protecting powers must be informed as soon as possible about which offenses are punishable by death. Other offenses may not be added to the list later without the agreement of the protecting power. (Convention III, Art. 100)

An occupying power may sentence civilians to death only if they are guilty of spying, serious acts of sabotage, or if they murdered one or more people Ñ but only if these offenses were punishable by death by local laws before the occupation began. (Convention IV, Art. 68)

If civilians in an occupied territory are charged with an offense that is punishable by death, their protecting power must be notified immediately. If the notification is not received at least three weeks before the first hearing, the trial shall not proceed. (Convention IV, Art. 71)

See also fair trials.

deportation

Individual or mass deportations from an occupied territory are prohibited regardless of motive. If evacuation is required, civilians may be moved within an occupied territory or outside if absolutely necessary, but must then be returned home as soon as hostilities in the area have ceased. (Convention IV, Art. 47)

Civilians in an occupied territory must not be transferred to a country where they have reason to fear persecution based on their political or religious beliefs. (Convention IV, Art. 45)

dormitories

Prisoners of war must be housed under the same conditions as the local forces of the detaining power. The premises must be dry, adequately heated and lighted, and secured against fire. Women must have separate dormitories from men. (Convention III, Art. 25)

If women who are not members of a family unit are interned in the same place as men, then they must have separate sleeping quarters and sanitary conveniences. (Convention IV, Art. 85)

due process

The passing of sentences and the carrying out of executions are forbidden unless all the judicial guarantees which are recognized as indispensable by civilized people have been met and a regularly constituted court has pronounced a judgment. (Convention I, Art. 3, Sec 1d)

enemy aliens

Aliens in the territory of a party to a conflict have the right to individual or collective relief, medical attention, and the freedom to practice their religions. In addition, they must be allowed to leave danger zones to the same extent as nations. (Convention IV, Art. 38)

fair trial

The passing of sentences and the carrying out of executions are forbidden unless all the judicial guarantees which are recognized as indispensable by civilized people have been met and a regularly constituted court has pronounced a judgment. (Convention I, Art. 3, Sec 1d)

Depriving combatants, prisoners of war, refugees, or medical or religious personnel of a fair trail is a grave breach of the Geneva Convention. (Protocol I, Art. 85, Sec. 4e)

grave breaches

Grave breaches of the Conventions and Protocols are war crimes.

Attacking a person who is hors de combat. (Protocol I, Art. 85, Sec. 3)

Any unlawful act which causes death or seriously endangers the health of a prisoner of war. (Convention III, Art. 13)

Unlawful transfer, deportation or confinement of civilians, willful killing, hostage taking and torture . (Protocol IV, Art. 147)

Depriving civilians who are under the control of an enemy power of the right to a fair trial (Convention IV, Art. 147)

Depriving combatants, prisoners of war, refugees, or medical or religious personnel of a fair trial. (Protocol I, Art. 85, Sec. 4e)

humane treatment of internees

Internees retain their civilian status and may exercise all attendant rights. (Convention IV, Art. 80)

Internees must be accommodated according to nationality, language and customs. Family groups must be lodged together and with facilities for leading a proper family life. (Convention IV, Art. 82)

Internees must not be housed in areas exposed to dangers of war. (Convention IV, Art. 83)

Internees must be housed in clean and healthy buildings, adequately heated and lighted, with suitable bedding, sanitary facilities, and separate accommodations for women who are not members of a family group. (Convention IV, Art. 85)

Internees must have access to premises suitable for religious services of any denomination. (Convention IV, Art. 86)

Internees must have enough food and drinking water to avoid nutritional deficiencies and in keeping with their customary diet, with additional food provided for pregnant and nursing mothers and young children. (Convention IV, Art. 89)

Internees must be provided with adequate clothing, footwear, and underwear. (Convention IV, Art. 90)

Internees must have access to adequate medical care. (Convention IV, Art. 91)

See also medical care for internees.

Identification by tattooing or imprinting signs or markings on the body is prohibited, and internees must not be subjected to prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or reduction in food rations. (Convention IV, Art. 100)

In no case may disciplinary penalties be inhuman, brutal or dangerous to the health of the internees. (Convention IV, Art. 119)

Imprisonment in premises without daylight and all forms of cruelty without exception are forbidden. (Convention IV, Art. 118)

Internees may not be transferred to prisons to undergo disciplinary punishment there. (Convention IV, Art. 124)

See also internees, punishment of.

humane treatment of prisoners of war

Prisoners of war must be humanely treated at all times. Any unlawful act which causes death or seriously endangers the health of a prisoner of war is a grave breach of the Geneva Conventions. In particular, prisoners must not be subject to physical mutilation>, biological experiments, violence, intimidation, insults, and public curiosity. (Convention III, Art. 13)

Prisoners of war must be interred on land, and only in clean and healthy areas. (Convention III, Art. 22)

Prisoners of war are entitled to the same treatment given to a country's own forces, including total surface and cubic space of dormitories, fire protection, adequate heating and lighting, and separate dormitories for women. (Convention III, Art. 25)

Prisoners of war must receive enough food to maintain weight and to prevent nutritional deficiencies, with account of the habitual diet of the prisoners. Food must not be used for disciplinary purposes. (Convention III, Art. 26)

Prisoners of war must receive adequate clothing, underwear and footwear. The clothing must be kept in good repair and prisoners who work must receive clothing appropriate to their tasks. (Convention III, Art. 27)

Also see clothing for prisoners of war.

Prisoners of war must have adequate sanitary facilities, with separate facilities for women prisoners. (Convention III, Art. 29)

Prisoners of war must receive adequate medical attention. (Convention III, Art. 30)

See medical care for prisoners of war.

Prisoners of war must receive due process and fair trials. (Convention III, Art. 82 through Art. 88)

Collective punishment for individual acts, corporal punishment, imprisonment without daylight, and all forms of torture and cruelty are forbidden. (Convention III, Art. 87)

indecent assault
Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault is prohibited at any time and in any place whatsoever, whether committed by civilians or military personnel. (Protocol I, Art. 75)

internees, punishment of

All civil laws in a territory continue to apply to internees who commit offenses during internment. However, if an act is only punishable when committed by internees and not other civilians, then that act can only be punished by disciplinary punishments. (Convention IV, Art. 117)

These include fines totaling not more than two weeks' wages, loss of special privileges, a maximum of two hours of fatigue duties a day, or confinement not to exceed thirty consecutive days. (Convention IV, Art. 119)

Imprisonment in premises without daylight and all forms of cruelty without exception are forbidden. (Convention IV, Art. 118)

Internees may not be transferred to prisons to undergo disciplinary punishment there. (Convention IV, Art. 124)

internment

If an occupying power considers it necessary for imperative reasons of security, it may restrict civilians to assigned residents or to internment. Due process must be followed and internees must have the right of appeal. In addition, cases must be reviewed regularly, every six months if possible. (Convention IV, Art. 78)

If the internee is no longer able to work, then the occupying power must provide employment opportunities comparable to those of other civilians or otherwise ensure the internee's support. (Convention IV, Art. 39)

In addition, internees must be allowed to receive allowances from their home countries, from the protecting power, or from relief societies. (Convention IV, Art. 39)

interrogation of prisoners of war

Prisoners of war are only obligated to provide names, ranks, date of birth, army, personal or serial identification numbers or equivalent information. Failure to do so may result in loss of special privileges. (Convention III, Art. 17)

No physical or mental torture, nor any other form of coercion may be inflicted. Prisoners who refuse to answer questions may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind. (Convention III, Art. 17)

Prisoners of war must be questioned in a language they can understand. (Convention III, Art. 17)

lawyers

Prisoners of war must have the right to legal advice, particularly in the case of preparing powers of attorney and wills. (Convention III, Art. 77)

The same applies to civilian internees. (Convention IV, Art. 113)

parcels

Prisoners of war must be allowed to receive parcels containing food, clothing, medical supplies, religious, educational and recreational objects. (Convention III, Art. 72)

Detainees in occupied territories must be allowed to receive at least once relief parcel monthly. (Convention IV, Art. 76)

Internees must be allowed to receive parcels containing food, clothing, medical supplies, as well as books and religious, educational or recreational objects. (Convention IV, Art. 108)

prisoners' representatives

In all prisoner of war camps, except where officers are present, the prisoners must be allowed to freely elect representatives by secret ballot every six months and in case of vacancies. These representatives will lobby for prisoners' interest before the military authorities, the protecting powers, and . (Convention III, Art. 79)

Prisoners of war must be allowed to freely consult with their representatives, and these representatives must be allowed to freely visit premises where prisoners are kept. (Convention III, Art. 81)

religious services

Adequate premises must be provided to prisoners of war (Convention III, Art. 34) and internees (Convention IV, Art. 86) for religious services to be held.

torture

Torture is forbidden by the Geneva Conventions, both in cases of internal conflicts (Convention I, Art. 3, Sec. 1A), wounded combatants (Convention I, Art. 12), civilians in occupied territories (Convention IV, Art. 32), civilians in international conflicts (Protocol I, Art. 75, Sec. 2Ai) and civilians in internal conflicts (Protocol II, Art. 4, Sec. 2A).

mane treatment of internees

Internees retain their civilian status and may exercise all attendant rights. (Convention IV, Art. 80)

Internees must be accommodated according to nationality, language and customs. Family groups must be lodged together and with facilities for leading a proper family life. (Convention IV, Art. 82)

Internees must not be housed in areas exposed to dangers of war. (Convention IV, Art. 83)

Internees must be housed in clean and healthy buildings, adequately heated and lighted, with suitable bedding, sanitary facilities, and separate accommodations for women who are not members of a family group. (Convention IV, Art. 85)

Internees must have access to premises suitable for religious services of any denomination. (Convention IV, Art. 86)

Internees must have enough food and drinking water to avoid nutritional deficiencies and in keeping with their customary diet, with additional food provided for pregnant and nursing mothers and young children. (Convention IV, Art. 89)

Internees must be provided with adequate clothing, footwear, and underwear. (Convention IV, Art. 90)

Internees must have access to adequate medical care. (Convention IV, Art. 91)

See also medical care for internees.

Identification by tattooing or imprinting signs or markings on the body is prohibited, and internees must not be subjected to prolonged standing and roll-calls, punishment drill, military drill and maneuvers, or reduction in food rations. (Convention IV, Art. 100)

In no case may disciplinary penalties be inhuman, brutal or dangerous to the health of the internees. (Convention IV, Art. 119)

Imprisonment in premises without daylight and all forms of cruelty without exception are forbidden. (Convention IV, Art. 118)

Internees may not be transferred to prisons to undergo disciplinary punishment there. (Convention IV, Art. 124)

See also internees, punishment of.

humane treatment of prisoners of war

Prisoners of war must be humanely treated at all times. Any unlawful act which causes death or seriously endangers the health of a prisoner of war is a grave breach of the Geneva Conventions. In particular, prisoners must not be subject to physical mutilation>, biological experiments, violence, intimidation, insults, and public curiosity. (Convention III, Art. 13)

Prisoners of war must be interred on land, and only in clean and healthy areas. (Convention III, Art. 22)

Prisoners of war are entitled to the same treatment given to a country's own forces, including total surface and cubic space of dormitories, fire protection, adequate heating and lighting, and separate dormitories for women. (Convention III, Art. 25)

Prisoners of war must receive enough food to maintain weight and to prevent nutritional deficiencies, with account of the habitual diet of the prisoners. Food must not be used for disciplinary purposes. (Convention III, Art. 26)

Prisoners of war must receive adequate clothing, underwear and footwear. The clothing must be kept in good repair and prisoners who work must receive clothing appropriate to their tasks. (Convention III, Art. 27)

Also see clothing for prisoners of war.

Prisoners of war must have adequate sanitary facilities, with separate facilities for women prisoners. (Convention III, Art. 29)

Prisoners of war must receive adequate medical attention. (Convention III, Art. 30)

See medical care for prisoners of war.

Prisoners of war must receive due process and fair trials. (Convention III, Art. 82 through Art. 88)

Collective punishment for individual acts, corporal punishment, imprisonment without daylight, and all forms of torture and cruelty are forbidden. (Convention III, Art. 87)

indecent assault
Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault is prohibited at any time and in any place whatsoever, whether committed by civilians or military personnel. (Protocol I, Art. 75)

internees, punishment of

All civil laws in a territory continue to apply to internees who commit offenses during internment. However, if an act is only punishable when committed by internees and not other civilians, then that act can only be punished by disciplinary punishments. (Convention IV, Art. 117)

These include fines totaling not more than two weeks' wages, loss of special privileges, a maximum of two hours of fatigue duties a day, or confinement not to exceed thirty consecutive days. (Convention IV, Art. 119)

Imprisonment in premises without daylight and all forms of cruelty without exception are forbidden. (Convention IV, Art. 118)

Internees may not be transferred to prisons to undergo disciplinary punishment there. (Convention IV, Art. 124)

internment

If an occupying power considers it necessary for imperative reasons of security, it may restrict civilians to assigned residents or to internment. Due process must be followed and internees must have the right of appeal. In addition, cases must be reviewed regularly, every six months if possible. (Convention IV, Art. 78)

If the internee is no longer able to work, then the occupying power must provide employment opportunities comparable to those of other civilians or otherwise ensure the internee's support. (Convention IV, Art. 39)

In addition, internees must be allowed to receive allowances from their home countries, from the protecting power, or from relief societies. (Convention IV, Art. 39)

interrogation of prisoners of war

Prisoners of war are only obligated to provide names, ranks, date of birth, army, personal or serial identification numbers or equivalent information. Failure to do so may result in loss of special privileges. (Convention III, Art. 17)

No physical or mental torture, nor any other form of coercion may be inflicted. Prisoners who refuse to answer questions may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment of any kind. (Convention III, Art. 17)

Prisoners of war must be questioned in a language they can understand. (Convention III, Art. 17)

lawyers

Prisoners of war must have the right to legal advice, particularly in the case of preparing powers of attorney and wills. (Convention III, Art. 77)

The same applies to civilian internees. (Convention IV, Art. 113)

parcels

Prisoners of war must be allowed to receive parcels containing food, clothing, medical supplies, religious, educational and recreational objects. (Convention III, Art. 72)

Detainees in occupied territories must be allowed to receive at least once relief parcel monthly. (Convention IV, Art. 76)

Internees must be allowed to receive parcels containing food, clothing, medical supplies, as well as books and religious, educational or recreational objects. (Convention IV, Art. 108)

prisoners' representatives

In all prisoner of war camps, except where officers are present, the prisoners must be allowed to freely elect representatives by secret ballot every six months and in case of vacancies. These representatives will lobby for prisoners' interest before the military authorities, the protecting powers, and . (Convention III, Art. 79)

Prisoners of war must be allowed to freely consult with their representatives, and these representatives must be allowed to freely visit premises where prisoners are kept. (Convention III, Art. 81)

religious services

Adequate premises must be provided to prisoners of war (Convention III, Art. 34) and internees (Convention IV, Art. 86) for religious services to be held.

torture

Torture is forbidden by the Geneva Conventions, both in cases of internal conflicts (Convention I, Art. 3, Sec. 1A), wounded combatants (Convention I, Art. 12), civilians in occupied territories (Convention IV, Art. 32), civilians in international conflicts (Protocol I, Art. 75, Sec. 2Ai) and civilians in internal conflicts (Protocol II, Art. 4, Sec. 2A).

Posted by rowan at September 24, 2006 8:34 AM | [eMail this article!] |