On January 25, 2002, the U.S. Justice Department sent a memorandum to the George W. Bush reasserting the judgment that the Geneva Conventions did not apply to prisoners held at Guantanamo Bay, Cuba. Entitled “Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict With al Qaeda and the Taliban” and written by Alberto R. Gonzales, the memo weighs the pros and cons of the administration’s decision to announce the inapplicability of international humanitarian law in the “war on terrorism”.
The memo was written in response to a memo from Secretary of State Colin Powell to Bush expressing concern over the Justice Department’s judgment. The stated reasons for the State Department’s opposition to this judgment is instructive.
“The Secretary of State”, the memo says, “has requested that you reconsider” the decision “that the Geneva Convention III on the Treatment of Prisoners of War (GPW) does not apply”. Secretary of State Colin Powell “has asked that you conclude that GPW does apply to both al Qaeda and the Taliban.” The purpose of the memo, Gonzales writes, is to outline “the ramifications of your decision and the Secretary’s request for reconsideration.”
The review of the legal background for the decision begins with the note that it is the Office of Legal Council’s belief that the Executive Branch has “the constitutional authority to make the determination” regarding the applicability of international humanitarian law to armed conflicts. This belief is based on the fact that the Justice Department’s Office of Legal Council (OLC) “has…opined that” the President has “the authority to determine that GPW does not apply”. According to the State Department, “This interpretative authority extends to both domestic and international law”, an erroneous assumption which sets the tone for the analysis which follows.
The memo then proceeds to weigh the pros and cons of the decision. Among the “Positive” effects of the decision is the observation that it “Preserves flexibility”, because “the war against terrorism is a new kind of war”, and the “new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners”. Also a “positive” effect of the decision to disregard international humanitarian law is that it “Substantially reduces the threat of domestic criminal prosecution under the War Crimes Act”, which “prohibits the commission of a ‘war crime’ by or against a U.S. person, including U.S. officials”, a “war crime” being defined “to include any grave breach of GPW or any violation of common Article 3 thereof (such as ‘outrages against personal dignity’).”
In other words, the decision to disregard the Geneva Conventions in “the war on terrorism” is “Positive” because it means individuals within the U.S. government who might otherwise be vulnerable to prosecution for war crimes will not be held accountable for their actions.
“On the other hand”, the memo continues, “The United States could not invoke the GPW if enemy forces threatened to mistreat or mistreated U.S. or coalition forces captured during operations in Afghanistan, or if they denied Red Cross access or other POW privileges,” and, furthermore, “The War Crimes Act could not be used against the enemy”. This decision would also “likely provoke widespread condemnation among our allies and in some domestic quarters” and “may encourage other countries to look for technical ‘loopholes’ in future conflicts to conclude that they are not bound by GPW either”. This determination “could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.”
The memo then argues against its own “Negative” criteria by noting that the U.S. has, in the past, “determined that GPW did not apply” and that “even if GPW is not applicable, we can still bring war crimes charges against anyone who mistreats U.S. personnel.” In other words, the essence of the argument is that the United States is free to disregard international law, but anyone else will be held accountable for committing war crimes.
The memo also notes that “our adversaries in several recent conflicts have not been deterred by GPW in their mistreatment of captured U.S. personnel, and terrorists will not follow GPW rules in any event.” The Justice Department thus expresses its belief that since others commit war crimes, it is therefore perfectly acceptable for the United States to do so, as well.
Moreover, while it is “undoubtedly true” that “other nations would criticize the U.S. because we have determined that GPW does not apply”, the memo notes, “some international and domestic criticism is already likely to flow from your previous decision not to treat the detainees as POWs” and “we can facilitate cooperation with other nations by reassuring them that we fully support GPW where it is applicable”. Translated into meaningful terms, the argument is that even though the world would “undoubtedly” condemn the United States for disregarding international humanitarian law, such “criticism” is inevitable, anyhow, and can be dealt with by “reassuring” the world that the United States would apply the Geneva Conventions in other cases of armed conflict — just not when the offending country is the United States of America itself.
The United States, the memo adds, “will continue to be constrained by…its commitment to treat the detainees humanely”, by “its applicable treaty obligations”, by “minimum standards of treatment universally recognized by the nations of the world”, and by “applicable military regulations regarding the treatment of detainees.” The clear message is that officially disregarding international humanitarian law will remove at least one of burdensome “constraint”.
The Gonzales memo makes no pretenses about its intentions. On the other hand, by establishing the illusion of contention on the issue, the Secretary of State has attempted to insulate himself from backlash from the predicted result of the policy, the undermining of “the highest standards of conduct in combat” in favor of the “element of uncertainty” — a policy which has led directly to the abuses which reportedly occur at places such as Guantanamo Bay; a policy which has led directly to the violations of international humanitarian law, represented in photographic evidence, that occurred the Abu Ghraib prison facility in Iraq.