Key Senators Strike Deal with Bush Administration: Redefinition of Geneva Conventions Rejected, Acts of “Serious” Cruelty Criminalized
Today’s agreement on detainee treatment between the White House and Senators John McCain, Lindsey Graham, and John Warner denied the Administration the authority to redefine the Geneva Convention standards on humane treatment. The President was seeking language that would have downgraded the Geneva Convention standards contained in Common Article 3. But the compromise reached today rejects that approach. The Supreme Court recently held that the Geneva Conventions apply to all U.S.-held detainees. And today, key Senators made clear that those standards will not change.
“We’ve been engaged in a debate about core values and who Americans are as a people. Today’s agreement makes clear that the President cannot unilaterally downgrade the humane treatment standards of the Geneva Conventions,” said Elisa Massimino, Washington Director of Human Rights First. “The administration failed in its attempt to get around the prohibitions against torture and cruelty by arguing that the standards are ‘flexible.’ The law means what it says and today’s agreement reaffirms the integrity of the rules.” added Massimino.
Ms. Massimino added, “Scores of senior military leaders, including five former Joint Chiefs of Staff, said that redefining the Geneva Conventions would put U.S. soldiers at risk. Their views have prevailed.”
The agreement also includes amendments to the War Crimes Act that narrow the scope of conduct punishable as a war crime. The Administration had sought to exclude cruel or inhuman treatment from the list of violations punishable as war crimes in U.S. law. But the deal reached today would criminalize “serious” acts of cruelty not rising to the level of torture. This has implications not only for criminal liability of U.S. personnel, but also would limit the ability to bring to justice in U.S. courts those who abuse U.S. soldiers held captive by the enemy. The War Crimes Act was enacted a decade ago to ensure that those who commit war crimes against U.S. personnel can be brought to justice before U.S. courts. Nonetheless, Ms. Massimino said, “the language in today’s agreement makes clear that ‘alternative interrogation procedures’ such as stress positions, induced hypothermia and waterboarding are not only prohibited by the treaty, they are war crimes.”
While the deal does not redefine the Geneva standards, concerns remain. The question whether the Administration’s interpretation of Geneva standards comports with the law is still open. The agreement would also make it more difficult to ensure that those whose Geneva Convention rights are violated can get justice in the courts. “Secret detentions without judicial oversight invite abuses. And if there is no forum in which abuses can be exposed, then the force of the clear prohibition against inhumane treatment will be undermined,” Ms. Massimino said.