In a comment to my earlier item, The Disappeared, Cecil Turner asks why I called the 'ghost' detainee in question a 'confirmed POW'. And, re-reading the article I have to say that he's basically right. The New York Times didn't tell us much about the conditions under which the unnamed prisoner was captured, or what his citizenship was, so it seems I jumped to conclusions. And, in fact, I just found this recent Reuters article, Rumsfeld Acknowledges Hiding Iraqi Prisoner which says the detainee is an Iraqi civilian, not a POW.
That doesn't change the bottom line as much as you might think, however. As a civilian internee, he has rights too, under the Fourth Geneva convention, which also don't appear to have been observed. The best case for the US might be Art. 5 of 4th Geneva:
Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with security of State or Occupying Power as case may be.
While this might justify stopping letters home, it doesn't justify hiding the detainee's existence from the Red Cross, or failing to give him an ID number, or deporting him (cf. 4th Geneva, Art. 76: “Art. 76. Protected persons accused of offences shall be detained in the occupied country.”). Also, it would be surprising to hear the US argue that the security situation in Iraq, which we're usually told is so greatly improved, remains so bad as that the security situation would be undermined by letting the Red Cross visit him. Art. 143 says, “Such visits may not be prohibited except for reasons of imperative military necessity, and then only as an exceptional and temporary measure. Their duration and frequency shall not be restricted.” — have things been that bad all along?.
Of course, for its purposes the administration may have put him into the black hole category of “unlawful combatant,” but I personally do not accept that this category can be used to remove nationals of Geneva Convention signatory states from the reach of those very encompassing agreements on the unilateral say-so of an administration official. I also remain very highly dubious that this can be done even after a military hearing; in any event in this case there appears to have been no such hearing, not to mention none of the follow-on hearings that might be required if the detainee is classed as civilian being held in special circumstances out of extreme military necessity.
I simply do not accept the assertion that membership, much less suspected or reputed membership, in an international criminal organization like al Qaeda, negates a detainees citizenship and its privileges. And if you think about it, that's not a precedent we'd like to set for our enemies to use against us.
[Several other commentators have asked why in my original post I called this a 'technical' war crime. That's not a term of art; I just meant by that to suggest that although I believe this conduct is seriously wrong, and violates the US's international obligations, and might in theory be classed as a war crime, it doesn't seem to me personally be as evil as, say, raping and killing and frankly it's hard to imagine that it would form the centerpiece of any very hypothetical international prosecution if the subject emerges unhurt. In the highly unlikely event that any of the US's conduct towards its prisoners ever were to come before an international body — a procedure limited for the gravest and most serious offenses — it will be because of a substantial pattern of serious violence, injuries, or deaths, not just what is reported so far in the case of this particular 'ghost detainee'.]
If I remember correctly when the story broke they said XXX was supposedly the second in command to al Qaeda in Iraq. Still doesn’t make it right to hide him though (infact nothing does in my mind).
Americans are upset about the apparent systematic torture and abuse. A single detainee is not the issue. Instead it is a system gone wrong.
When we look at the photos, and await the eventual release of other photos, when we see the dishonest attempt to circumvent treaties, the law and the Constitution, to avoid blame, to operate in incredible secrecy (classify everything), we know that this is not a proud moment for America.
Add to it the deceptions that led to war, the senseless sacrifice of our own, the killing of thousands of Iraqis, and we have a very pissed-off electorat.
(And by a chicken-hawk administration led by a guy who can’t explain his own AWOL actions. But I digress.)
I saw no explicit connection to this detainee being what the third Convention would classify as a prisoner of war. However, there appears to be a tacit admission to that effect from the Justice Department, in their advice that holding this detainee outside of Iraq, in a facility not recognized by a Protective Power or neutral Power as a POW facility, might be in violation of the law.
That advice would seem to have been predicated on the DOJ’s acknowledgment that this detainee could be seen as qualifying as a POW, and also that he must be in a facility known to be housing POW’s – thus subject to scrutiny – because they have already rejected the idea that Geneva can be applied to what it calls enemy combatants.
I’m not an attoney, but that’s the reasoning I used to arrive at the conclusion that his status as a POW was at the very least implied by the DOJ’s counsel.
Well, I am flattered (and would have said so earlier, but a business trip interfered).
As to Fourth Geneva, the provisions forbidding “outrages upon personal dignity” and the like apply only to: “Persons taking no active part in the hostilities . . .” Which probably doesn’t mean any member of Ansar Al Islam.
There are also applicable exceptions to notification requirements for security risks, e.g.:
“Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. “
Finally, the “combatant” term needs clarification. According to Protocol I (article 43), it’s those persons who “have the right to participate directly in hostilities,” and a prerequisite for POW status. The term “unlawful combatant” means those who participate without meeting the requirements for combatant status. The term dates back at least to 1942 (Quirin–where AFAICT the determination was made by the President unilaterally). The concept dates back much further, though terms like “armed prowler” were used, and offenders were often dealt with summarily.
The prohibition against communications is directed to letters home. Maybe arguably it might apply to letting the prisoner talk to the Red Cross. Under no circumstances could it be understood to allow the imprisoning power to fail to notify the Red Cross that the person is being held, or to fail to assign them a tracking number.
Furthermore, the exception applies only during “absolute military necessity”. Suppose, although I’m doubtful, this existed for a few days. It surely lapsed long ago — they weren’t even questioning the guy!
The prohibition against communications is directed to letters home. It seems also to apply to communications with various agencies (including Red Cross) in article 104. Combined with the previous paragraph:
“Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State. “
It clearly recognizes the “State’s” security concerns, and the allowable exception which would certainly seem to apply to the leader of an active terrorist cell (again assuming the description as an Ansar Al Islam leader is correct).
That a particular detainee is lost in the system is regrettable and sloppy, but probably not criminal. Virtually every “breach” description requires a “wilful” act. That the detainee was apparently forgotten is evidence that the act was unintentional, which is a defense.
What what I’ve read — and we’re at a level of detail beyond my expertise here — it is generally agreed that one has a duty to admit one’s holding the person and assign them a tracking number either at capture or almost immediately thereafter. It was Maj Gen Antonio Taguba who called it “deceptive, contrary to army doctrine, and in violation of international law”. I’m taking that as fairly conclusive…
Nor do I claim that expertise. However, the military value of recently captured prisoner lists during an ongoing insurgency ought to be obvious. If the intent is to deny that information to the enemy, it would seem to come under the security exception (for some minimal length of time until the enemy could be expected to obtain the information through other means). In that event, it’s hard to see how that would be a violation, even if notification was subsequently fumbled.
And again, the evidence suggests this particular case was mishandled through incompetence–which is possibly a less charitable interpretation for a wartime administration than cutting corners on GC notification procedures–but unlikely to be a war crime.