On waterboarding and the Geneva Convention


By Nick Li


Yesterday I finally got a chance to see what waterboarding actually looks like when CNN aired part of this video by journalist Kaj Larsen. Now this practice certainly violates article 3 of the Third Geneva Convention – whether or not we would call it "torture" or merely "cruel treatment" or "outrages upon personal dignity, in particular, humiliating and degrading treatment" is irrelevant from this point of view. Article 3 says:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: 1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The US authorities do not usually argue explicitly that waterboarding should not be considered torture. The Republican candidates for the Presidency have tended to make statements more along the lines of "I would not want to reveal to our enemies what specific interrogation techniques we will use" or "I don’t want to comment on specific techniques" or "I’ll leave it to our military." But the thrust of the argument so far has been that waterboarding is ok when applied to "unlawful combatants," people who do not satisfy Article 4 of the Geneva convention and hence need not be afforded the standards of treatment applied to prisoners of war:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.

3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2. The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favourable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

On the face of it, this would seem to exclude certain groups of people (Al-quaeda in Iraq or Afghanistan) while including others (the Taliban, Iraq’s conventional army) though you could argue that perhaps the Taliban did not have a "fixed distinctive sign recognizable at a distance." Then again, US troops in camouflage don’t either? US authorities would also argue that the Fourth Geneva Convention on "Protection of Civilian Persons in Time of War" also does not apply to these people since they are actively involved in hostilities. Of course, if waterboarding is torture, this distinction is besides the point, since the UN Convention on Torture states

The States Parties to this Convention, Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world, Recognizing that those rights derive from the inherent dignity of the human person, Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms, Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment, Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975, Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world, Have agreed as follows: PART I Article 1 1. For the purposes of this Convention, the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

The article leaves no doubt that all human beings full under its jurisdiction. And the US has ratified the Convention against Torture. So then it does become a debate about whether waterboarding is "torture" or not. You can judge form the video whether or not such an act would constitute "severe pain or suffering," and I find it hard to believe that anyone who has witnessed such an act could conclude otherwise, and lack of understanding about what waterboarding actually is seems to be one of the reasons many people in the US have not become more outraged and stood behind John McCain by stating clearly and explicitly "waterboarding is torture and it is unacceptable." The kinds of statements made by Republican candidate Mitt Romney have come to typify the administration’s response to accusations that it is violating international law or committing immoral acts in the name of all Americans – "I would consult with our national security advisors." By leaving all operational details of the Iraq war to military commanders, George W. Bush has somehow managed to absolve himself of most of the blame for various military failures in Iraq and human rights fiascos. The failure of politicians to deal explicitly and openly about standards of treatment, and to pass this on to politically unaccountable (and certainly less transparent) internal military "judgment calls" is highly irresponsible and evasive on their part. With the recent news that the CIA has destroyed tapes of the interrogation of two detainees, including Abu Zubaydah who was waterboarded, is just the latest evidence that the the administration is trying to evade responsibility for violating international laws and protect itself from future prosecution. It is also further evidence that one cannot leave responsibility for these types of decisions to unelected officials or "experts" either since they are even less accountable and have much lower standards of transparency. I came across an interesting discussion about torture on Brad Delong’s blog the other day. The article itself, by Sebastian Holsclaw, is a good indictment of the types of torture hypotheticals used by Alan Dershowitz and various political candidates (the "Jack Bauer" approach to human rights) from a right-wing, anti-government view. More interesting are some of the comments. In particular I agree with the remarks of the commentator "Dirty Davey" –

Here is the thing I keep coming back to. If torture is completely illegal and the laws are enforced, and if by some chance an agent of the government has a captive and is certain of the three points above (he is who we think he is, he knows what we think he knows, and torture is the only way to get it out of him), AND–not mentioned but also an essential assumption–what he knows is something that, once we know it, allows us to save many lives…. Then: (1) if the agent tortures, the information is extracted, lives are saved, and the evidence of that is presented in court, few juries are likely to choose to punish the agent severely, and (2) one would presume that the agent should be willing to assume any risk of punishment to save so many lives. In effect, since the torture "working" would likely never be prosecuted, loosening the law is simply a way to allow the agent to torture when the government is NOT certain of the things of which the hypothetical requires that it be certain.

The implication being that acts such as waterboarding can never receive official sanction ex ante, and that such acts must always receive official condemnation with some degree of punishment. There should be no ambiguity about what acts are acceptable or not, as the lack of transparency itself leads many people to assume the worst and in effect provides a greater recruitment device than deterrent to terrorist organizations. Ex post, however, such acts could be seen in a more positive light if it can be proven that they saved many lives. This sets the standard of certainty at what I think is a reasonable level for actions as serious as these. – Nick

5 thoughts on “On waterboarding and the Geneva Convention

  1. Hi Nick

    This was Well thought out with sound reasoning with a rational conclusion based on your thoughts.

    However, here are a few points I’d like to add to the discussion.

    In order to learn from the past, history and historical documents like the Constitution, the Geneva convention and the UN Convention on Torture must be taken and learned within the context of the “time period” and “purpose”. Context is everything to understanding intent and purpose.

    Was the purpose of the Geneeva Convention to protect terrorists–I don’t believe that was the authors intent. It was however to protect legitimate combatants and their legitamate subordinates. The Geneva Convention was very specific on who was granted protection. To me it is clearly self evident by the authors and framers that not all combatants are granted this protection under The G.C.

    In regards to the UN Convention on Torture, This was clearly directed to the Civil and Political as stated in article 7 of said document. The UN is not the creator of the Geneva Convention, and to say these two documents are linked or connected is to omit the absolute fact that one dealt with combatants during time of war or armed conflict and the later dealt with governments dealing with civilians in a Civil and Political realm.

    I am in accord with the idea that a clear definition of what is legal and what is not should be formulated for extracting information on those not protected by the Geneva Convention.

    By the UN’s own definition, only acts that cause “severe pain or suffering” can not be tolerated. So By definition, some pain and suffering are permitted.

    The conversation now should be what is “some pain” and what is “severe pain”.

    And I believe on that subject, Bush and his administration made that distinction, acted upon it and saved thousands of lives.

  2. Hi Nick, Otto and Robert

    Very interesting posts!

    I would agree that the US waterboarding practice is torture. I also think that US public opinion will come around to this view. The fact that the waterboarding tapes were destroyed suggests to me that at least some people in the Bush Administration fear this as well. No pass is deserved for those who authorized and performed the tortures.

    But more generally, I wonder how we should draw the line between tough but humane treatment and degrading and inhumane treatment? We might consider the recent decision of the Grand Chamber of the European Court of Human Rights in the Ramirez Sanchez (Carlos the Jackal) case. The French held Ramirez Sanchez in solitary confinement for over eight years. The Grand Chamber held that this treatment was not degrading or inhumane (in short because the conditions, while not comfy, were not so bad to lead to permanent psychiatric or physical deterioration – hmmmm neither does waterboarding – is this the right standard???). The Grand Chamber did find a separate violation for denying Ramirez Sanchez the right to appeal the repeated (every three months) rubber stamped decisions to continue his solitary confinement, and awarded him monetary damages (doesn’t this undercut the French argument that they reflected on the continuing nature of the justifications for the solitary confinement every three months when they prolonged it over eight years?). The court’s reasoning about the need to defer to French concerns about security makes rather interesting reading.

    Come on! Isn’t imposing solitary confinement for eight years degrading and inhumane per se? I think so, and I would bet that most people would agree if it were imposed on them. Also, isn’t denying the right to appeal repeated continuations of solitary confinement degrading and inhumane when it means that such treatment might go on and on to death? I think so. Yet, it is still difficult to work up a huge amount of sympathy for Mr. Ramirez Sanchez. Not surprisingly, there has been little criticism of the above decision after it was announced several months ago. Could it be that we are actually stumbling around in the dark in this area, claiming that we apply universal principles, when in reality we interpret facts on a case by case basis, depending on our emotions? That is troubling indeed.

  3. I am constantly amazed by the reactions to accusations of the USA torturing. If, say, Saudi Arabia or Libya had done exactly the same things, we would all be deafened by the cries of condemnation. However, when the USA engages in activities that clearly fall within the definition of torture, there aren’t outright condemnations so much as philosophical debates on the ‘nature’ of torture – as if whatever the USA does is *always* above reproach and everyone else has to rationalise it.

  4. Hello Nick,

    Interesting article. The UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the Finnish law professor Martin Scheinin, recently visited Guantanamo and will be reporting very soon on what he encountered there. I think he will be very critical, and say that the CIA is torturing people.

    This is the link to a previous report.

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