By calling the Graner-England incidents at Abu Ghraib, frat pranks, no way diminishes the suffering of the prisoners, but neither does it suggest in itself State-sanctioned torture or even abuse [emphasis addedMHD].
I take it, Henri, that the addition of "Note the horrors and large numbers of deaths.." to the beginning of this quote was an honest technical error.
Alas, my proof-reading process does not always suffice to prevent error ; the phrase «Note the horrors and large numbers of deaths» was not of, course, due to Apo
and should not have been included in the my citation of his posting - something which should have been clear to any careful reader, as the phrase, without any punctuation, simply hangs there, irrelevant to the following. In any event, I have added an editorial note to the posting above in which this error occurred, in order to avoid any possible misunderstanding. The error on my part was certainly inadvertent ; whether he who committed it is honest, Apo
, I must leave to your judgement - protestations of innocence, are not, as we know, the same thing as proof, whether they are pro-offered to the benefit of your humble interlocutor, or such luminaries as Messrs Cheney and Rumsfeld....
Since at least the 1990s, if hazing was conducted at a local chapter, it was without the knowledge or consent of the national organization and outside the guidelines for their initiation rituals. If discovered, it usually results in the revocation of the local chapter's charter and probably expulsion of members from the organization.
This would seem to contradict Henri's statement:
...it is widely known that the presence of «hazing» in an organisation is largely dependent upon the degree to which the practice is tolerated by leading persons in the organisation.
On the contrary, the above, taken from Wikipedia's article
tends to support my claim ; the reason such rules were adopted in the 1990s was to hinder sadistic and humiliating initiation procedures, which by that time had become a serious and widespread problem. The fact that strict guidelines from above were put into place in order to mistreatment of pledges shows that my theory was shared by the senior officers of these organisations. If, Apo
, you wish to undermine my theory, what you have to do is introduce empirical evidence which shows that, despite the new guidelines
, the incidence and severity of hazing has not decreased. Such evidence may exist, but until such time as it it produced, I shall continue to maintain that the attitude of senior persons has a great influence on the prevalence of such practices within an organisation....
...it would to my mind be far more appropriate to refer to them as (one set of) «the Cheney-Rumsfeld incidents», as those individuals, as is now publicly known, played the defining role in lowering the standards for the treatment of detainees, a lowering of standards which influenced not merely the two individuals you mentioned, but whole organisations, as can be seen from e g, Captain Fishback's testimony.
I am assuming, Henri, that you are talking about enemy [unlawful] combatant status, and its lack of qualification for the protections under the Geneva Conventions. Well, the al-Qaida and the Taliban (and other terrorist groups) fail to fulfill the requirements that are outlined in the GC:
The short answer is that a prisoner of war is entitled to the protections set forth in the 1949 Geneva Convention.
In contrast, an unlawful combatant is a fighter who does not play by the accepted rules of war, and therefore does not qualify for the Convention's protections.
The criteria are: "(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; [and] (d) that of conducting their operations in accordance with the laws and customs of war."
Al Qaeda does not satisfy these conditions. Perhaps Osama bin Laden could be considered "a person responsible for his subordinates," although the cell structure of al Qaeda belies the notion of a chain of command. But in any event, al Qaeda members openly flout the remaining three conditions.
Al Qaeda members deliberately attempt to blend into the civilian population - violating the requirement of having a "fixed distinctive sign" and "carrying arms openly." Moreover, they target civilians, which violates the "laws and customs of war."
Thus, al Qaeda members need not be treated as prisoners of war.
Since this is a serious matter, let me give a somewhat longer answer, citing the text provided in your link above :
Geneva Convention (III) Relative to the Treatment of Prisoners of War; August 12, 1949
Article 4 [This article is so long that instead of reproducing it in its entirety, I provide a link
[Note the second paragraph of Article 5 :]
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal
[Note two things here - one, if persons have not
committed a «belligerent act», they are to be regarded as civilians, and enjoy all the protections provided civilians under the Fourth Geneva Convention
, which are no less strict than those afforded to prisoners of war, and, in the event persons have committed «belligerent acts» (such as, e g, defending ones home after the door has been kicked in by enemy soldiers), they are to be regarded as prisoners of war until such time as a duly constituted tribunal has decided that they are not. As Knut Dorrman, legal adviser to the Legal Committee of the ICRC notes in an essay well worth reading, entitled «The legal situation of "unlawful/unprivileged combatants"»
, such decisions cannot, for obvious reasons, be taken by the commander of the field units concerned.
[With regard to «bad apples», note also the first paragraph, Article 12 :]
Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them
[And Article 13 :]Prisoners of war must at all times be humanely treated
[emphasis added[sub]MHD[/sub]]. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
Measures of reprisal against prisoners of war are prohibited.
[Article 17 :]
Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.
…No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind
[emphasis added[sub]MHD[/sub]]. Prisoners of war who, owing to their physical or mental condition, are unable to state their identity, shall be handed over to the medical service. The identity of such prisoners shall be established by all possible means, subject to the provisions of the preceding paragraph.
Article 25 :
Prisoners of war shall be quartered under conditions as favourable as those for the forces of the Detaining Power who are billeted in the same area. The said conditions shall make allowance for the habits and customs of the prisoners and shall in no case be prejudicial to their health.
The foregoing provisions shall apply in particular to the dormitories of prisoners of war as regards both total surface and minimum cubic space, and the general installations, bedding and blankets.
The premises provided for the use of prisoners of war individually or collectively, shall be entirely protected from dampness and adequately heated and lighted, in particular between dusk and lights out. All precautions must be taken against the danger of fire.
Until recently the Taliban was the actual (though not recognized) government of Afghanistan, and it was attacked as such by the United States, albeit in justifiable self-defense. If Taliban members did not wear distinctive uniforms before we attacked, one might think that they should not be faulted for failing to don such uniforms immediately once the shooting started.
But in the end, this argument is unpersuasive. The requirement of a distinctive sign is no mere technicality. Its object, like many of the laws of war, is to enable the enemy to distinguish combatants from civilians, and thus to minimize civilian casualties. Yet the Taliban made clear that it was not interested in complying with the letter or spirit of the law of war.
For example, when it still controlled Kabul, the Taliban hid military equipment among the civilian population. Furthermore, as the war unfolded, it became increasingly difficult to distinguish the Taliban from al Qaeda - which, as we have seen, clearly does not qualify to have its members treated as prisoners of war.
[For some reason, Michael C Dorf
does not find it incumbent upon himself to discuss the question of the application of Article 4 above to the reality on the ground in a country like Afghanistan, in which the separation between civilian and soldier is less marked than in the societies in which most of us, including Mr Dorf, live. It is, however, here worth citing Section 1. 6 of the article :
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.
The Schlesinger and Fay reports obviously haven't satisfied some critics, who are furiously spinning them for political advantage even though their accusations about alleged command failure have shifted drastically from "condoning torture" to poor supervision and planning. Some others are dismissing them altogether as a whitewash.
But Mr. Schlesinger and his fellow panelists, having already had long and distinguished careers, have no motivation to risk their own reputations for Mr. Rumsfeld's. They have produced what's to date the definitive assessment of what went wrong, and the bottom line could hardly be more clear: While the Abu Ghraib abuses deserve to be punished, like other wartime excesses, the allegations that they had anything to do with so-called "torture memos" and a Pentagon "culture of permissiveness" are nothing but a political smear.
If I were able to follow the logic of your arguments about the Graner-England incident at Abu Ghraib, then all and any abuse perpetrated by American troops or interrogators would be the fault of the Bush Administration. And as much as that would please some, I’m not falling for that sort of propaganda. The vast majority of our military personnel know very well what “humane treatment” is, and that an enlisted person cannot obey an unlawful order.
How very convenient ! It is not the US Government which is «spinning», but those nasty people (but don't worry, the NSA is listening to their conversations
, so soon they will be able to taste less-than-divine vengeance !) who dare to question the propriety of torture. And Apo
's resistence to my «propaganda» is gratifying, if surprising, considering my control over the mainstream media to which he is daily exposed and which represents a clear and present danger to democracy and his well-being ! But the «logic of my argument» is not at all, as any unbiased reader should know, that «all and any abuse perpetrated by American troops or interrogators would be the fault of the Bush Administration». What I said was the following :
Rather, it would to my mind be far more appropriate to refer to them as (one set of) «the Cheney-Rumsfeld incidents», as those individuals, as is now publically known, played the defining role in lowering the standards for the treatment of detainees, a lowering of standards which influenced not merely the two individuals you mentioned, but whole organisations, as can be seen from e g, Captain Fishback's testimony.
The present US administration has consistently worked to lower the standards for the treatment of detainees, rather than attempting to raise them, in a situation in which the need for clarifying certain aspects of the Geneva Conventions from 1949 was obvious, e g, standards of treatment for persons who fall outside the categories of prisoners of war on the one hand, or civilians on the other, as defined under the Conventions. Even for an Administration so intellectually handicapped as this one, that should not have represented a mission impossible ; in fact the work was already done, more than a quarter century ago and enshrined, inter alia
in the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1)
, a part of which I cite below.
Article 75.-Fundamental guarantees
1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) Violence to the life, health, or physical or mental well-being of persons, in particular:
(ii) Torture of all kinds, whether physical or mental;
( iii ) Corporal punishment ; and
(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;
(c) The taking of hostages;
(d) Collective punishments; and
(e) Threats to commit any of the foregoing acts.
3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.
4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:
(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;
(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;
(c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;
(d) Anyone charged with an offence is presumed innocent until proved guilt according to law;
(e) Anyone charged with an offence shall have the right to be tried in his presence;
(f) No one shall be compelled to testify against himself or to confess guilt;
(g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;
(i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and
(i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.
5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases
where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.
6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.
7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:
(a) Persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and
(b) Any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.
8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.
Had the present administration decided to accede to this protocol and thereby send a powerful signal to all concerned that «persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article...», we can rest assured that the number and severity of incidences of abuse and torture of persons in US hands would have been much less than has been the case. In that case, they could indeed have been regarded as unfortunate incidents, due to human frailty and perpetrated by a few bad apples, rather than the responsibility of the highest leadership. Alas, alone among States considered to be democracies and in which the rule of law is paramount (it is, however, accompanied by Turkey), the United States, which never tires of proclaiming its commitment to human rights, has never ratified this protocol. Perhaps, Apo
, as a US citizen (I presume), dedicated to the rule of law and human rights (I presume), you might wish to take it upon yourself to work for your country's accession to this Protocol....