Terror suspects are entitled to legal protection

By David Scheffer

Financial Times

Published: December 5 2005

Within the past month, European governments and human rights bodies have launched investigations into two terrible allegations: that in Europe, secret prisons held terrorist suspects brought by America’s CIA for possibly abusive interrogations and that there were clandestine flights with CIA links criss-crossing European territory and airspace to make unauthorised transfers of terrorist suspects.

The Council of Europe’s investigation and the insistence of European foreign ministers that Washington clarify the reports about secret prisons come amid suspicions of an embarrassing (perhaps criminal) collaboration by some European security officials with the darker side of the war on terror. Franco Frattini, the European Union justice commissioner, has threatened complicit states with suspension of voting rights in the EU’s Council of Ministers. Condoleezza Rice, US secretary of state, visits Europe this week reportedly to reject requests for information and unilaterally claim new rules.

Rarely has international law been so needlessly distorted as it has been by the debacle over ­detainees since September 11 2001.

The long-standing principles of humane ­conduct have been mangled by four years of warped interpretation by those in power, particularly in the US.

The 1984 Convention Against Torture, ratified by the US and European nations, prohibits torture and “other acts of cruel, inhuman or degrading treatment or punishment” that “do not amount to torture”. There are no exceptions for war-time imperatives and the law of war long ago mirrored such prohibitions.

The 1949 Geneva Conventions and international law govern coalition actions in Afghanistan, Iraq and the broader war on terror. Since these conflicts are defined by Washington and London as wars and the battleground nations are party to the Geneva Conventions, these treaties must apply. Any combatant captured in these wars deserves prisoner-of-war status unless he, first, is defined as a terrorist to be prosecuted in criminal court for terrorist acts or, second, is defined as an unlawful combatant not meeting certain criteria for soldiers set out in the third Geneva Convention. In either of these cases, the treaty requires that where there is doubt a “competent tribunal”, typically of military officers and lawyers versed in the law of war, review the individual’s status and determine whether he is a PoW or of some other status.

The Bush administration contends that the president and his senior subordinates can decide non-PoW status without the help of a “competent tribunal”. If there are secret prisons in Europe, officials will have to answer to whether anyone held there has had the benefit of a competent tribunal’s disciplined review of their status. In any event, non-PoW detainees are entitled to significant human rights and due-process protections that preclude torture or inhumane treatment during interrogation and detention.

Until 9/11, the US had accepted as customary international law the premise that whether or not a combatant is accorded Geneva PoW status, he must be granted the “fundamental guarantees” stated in Protocol I to the conventions, which ensures that all detainees in international conflicts are covered. The US signed Protocol I, while Britain and many European nations ratified it. The guarantees include prohibitions on physical or mental torture and outrages upon personal dignity, in particular humiliating and degrading treatment or any form of indecent assault. Non-PoW detainees are also entitled to critical due-process rights in criminal proceedings.

Since the war on terror is an international armed conflict, a captive, whether labelled a PoW or an unlawful combatant or terrorist, is entitled to full PoW protection or at least to the fundamental guarantees of ­Protocol 1.

Attempts by Dick Cheney, vice-president, to ensure that the CIA be the one US agency not covered by the US Army’s newly-revised rules on interrogations banning torture cannot change the reality that international law makes no exception to fundamental guarantees protecting detainees from abusive behaviour. Anyone locked up at US request in secret European prisons is still entitled to the full protection of international law. American and European officials can properly interrogate a PoW or a non-PoW detainee and, if this is done smartly, can probably elicit more actionable intelligence than current practice does. A PoW can never be coerced into giving information, but there remains latitude to question him.

If international law were followed, there would be no need for secret prisons or clandestine air flights. The US’s treatment of captives in the war on terror has been complicated by politically inspired and insidious interpretations of Geneva rules on the false premises that PoWs cannot be questioned and that terrorist suspects cannot be PoWs.

Washington should transparently operate PoW camps in the US. If foreign countries run any such facilities, they should do so openly as PoW camps in the war on terror. Rather than throw detainees into secret prisons or legal black holes such as Guantánamo Bay, they should be designated as PoWs and held in PoW camps or held as detainees destined either for terrorist trials or for release in a timely manner. At all times they are entitled to the fundamental guarantees the US and European nations long ago pledged to honour.

The writer is a visiting professor at Northwestern University School of Law and former US ambassador at large for war crimes issues