US: Pentagon Detention Guidelines
Enemy Combatants Could be Held as “Ghost
(Washington, April 7, 2005) -- Proposed Pentagon guidelines
will formalize the U.S. military’s illegal policy of holding “enemy combatants” without protections under
the Geneva Conventions, Human Rights Watch said today in a letter to Secretary of Defense Donald Rumsfeld.
The new policies, set out in a 142-page final draft document
prepared by the Joint Chiefs of Staff entitled "Joint Publication 3-63: Joint Doctrine for Detainee Operations", include a directive that would allow the military to
hold enemy combatants as “ghost detainees,” by denying access to them by the International Committee of the Red
The guidelines also specify that humane treatment of all detainees can be limited by “military
necessity,” a position that is both contrary to international and domestic law and opens the door to mistreatment and
even torture of detainees.
“Instead of correcting current violations of the Geneva Conventions,
these guidelines would shred the conventions further,” said Kenneth Roth, executive director of Human Rights Watch.
“The policies set out in this document could even require personnel to commit war crimes.”
personnel can be criminally liable for stripping protected persons of their rights under the conventions.
guidelines formalize a new category of detainee, “enemy combatants,” in connection with “the Global War
on Terror” who are “not entitled to the privileges and protection of the Geneva Conventions.” The document
then cites an extensive and expanding list of “terrorists and terrorist groups” identified under President Bush’s
2001 Executive Order 13224, and states: “Anyone detained that is affiliated
with these organizations will be classified as EC [Enemy Combatant].”
Executive Order 13224, currently
92 pages, contains common names and aliases like “Mohammad Zia” and “Abdullah Ahmed,” shared by tens
of thousands of persons worldwide, and names groups that are neither at war with nor engaged in terrorism against the United
States, such as the Basque group ETA; the Sword of David or American Friends of the United Yeshiva Movement; and the Real
Irish Republican Army.
“This policy could strip hundreds of thousands of people worldwide—including
civilians—of their basic rights not to arbitrarily detained,” said Roth.
The Pentagon document
has not yet been publicly released, and is set to be submitted to Secretary Rumsfeld for approval on April 16. Human Rights
Watch called on Secretary Rumsfeld to reject the proposed guidelines.
Letter to Secretary Rumsfeld On The "Joint Doctrine
for Detainee Operations"
Dear Secretary Rumsfeld:
Human Rights Watch urgently objects to a proposed joint military policy that would formalize as U.S. military
policy the category of “enemy combatant” as detainees who are not entitled to the protections of the Geneva Conventions.
Denying the protections of the Geneva Conventions to persons apprehended in the global war on terror is unsupported as a matter
of law, represents a radical deviation from the standards that have traditionally guided U.S. military operations, and places
U.S. service members and civilians detained by enemy forces at greater risk of mistreatment.
“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.
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:
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.”
“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.”
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.
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.
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,
3. Qualified Duty of Humane Treatment of Enemy Combatants
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
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
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
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.
Rights group decries proposed military doctrine that formalizes
"enemy combatant" status
04/08/05 - - WASHINGTON (AFP) - A proposed military
doctrine on detainee operations drew fire from a human rights group who said it reaffirmed the policy of classifying members
of certain extremist groups "enemy combatants" not protected by the Geneva Conventions.
The doctrine "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," Human Rights Watch said in a letter to US Defense Secretary Donald Rumsfeld.
fundamental principles will in particular suggest that all provisions of the conventions are subject to unilateral modification,"
said the letter by Kenneth Roth, the group's executive director.
The United States began declaring members of
al-Qaeda and the Taliban as illegal "enemy combatants" who were not entitled to Geneva Convention protections in the wake
of the September 11, 2001 attacks on the United States and the ensuing US-led campaign in Afghanistan.
target of international criticism, the US stance has come under mounting pressure over the past year as US courts have affirmed
the right of detainees to challenge their detention in courts and ruled that trials by special military commission were unconstitutional.
540 detainees are currently held as enemy combatants at a prison in Guantanamo Bay, Cuba. Others may be held in Iraq or Afghanistan,
or at other secret locations.
Despite the legal challenges, the "Joint Doctrine for Detainee Operations: Joint
Publication 3-63" reasserts the creation of an "additional classification" of detainee, enemy combatants, "who through their
own conduct, are not entitled to the privileges and protection of the Geneva Convention."
While that status originally
applied to suspected al-Qaeda or Taliban members, the draft doctrine says anyone affiliated with terrorists or terrorist groups
listed under a presidential order "will be classified as EC (enemy combatant)."
"Furthermore, there are individuals
that may not be affiliated with the listed organizations that may be classified as an EC," the document said.
said permitting anybody to be classified as an enemy combatant "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."
Rights Watch is deeply concerned that JP 3-63 on its face contravenes the Geneva Conventions," he wrote.
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