What's the deal with UNCAT, the Genva Convetions, and the US?

May 13, 2009 7:41 AM

I have some questions about torture regarding international and US law, especially the Geneva Conventions and the UNCAT.

This interesting thread led me to look up some things about international law regarding torture, and I was confused about a couple things. I'll tell you what I do understand (please tell me if it's wrong) and what I don't understand (please explain).

As I understand it, the parts of the Geneva Conventions which the US has ratified apply only to the treatment of prisoners of war from countries that obey the strictures of the Geneva Conventions; it is Protocol I, an addition to the Geneva Conventions from the '70s that prohibits torture of prisoners regardless of their previous disregard for the rules of war of the Geneva Conventions. The US has not ratified Protocol I. Thus it appears to me, as distasteful as it is to say, that G.W. Bush was correct when he insisted that the Geneva Conventions do not apply to prisoners rendered to Guantanamo Bay, since it is pretty clear that groups like Al Qaeda and the Taliban do not obey the rules of the Geneva Conventions.

However, the US has signed and ratified the The UN Convention Against Torture. From a brief reading of that document, it appears that this document prohibits torture of anyone under any circumstances, and it defines torture as follows:

"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

That seems entirely unambiguous to me. Is there any legal doubt that this applies to waterboarding? Is there a reason that I seem to only hear about the Geneva Conventions in relation to the Guantanamo Bay torture issue and never the UNCAT? Am I missing something about the legal nature of the UNCAT?

I'd also like to know how the US Constitution applies to foreigners held by the US: Is there a firmly established precedent that the Constitution only applies to US citizens? The Bill of Rights in the Constitution appears to refer to "persons" rather than "citizens". Why aren't Afghans rendered to Guantanamo Bay considered to be protected by the Constitution?

Thanks for your help MeFi Legal Team!

Note: I don't wish to start a shouting match about the morality of torture - I believe it to be incontrovertibly immoral and unconscionable; this question is strictly about the legal aspect.

posted by Salvor Hardin to law & government (5 comments total)

Is there a reason that I seem to only hear about the Geneva Conventions in relation to the Guantanamo Bay torture issue and never the UNCAT?

It's been discussed a lot.
posted by Houstonian at 7:59 AM on May 13

Why aren't Afghans rendered to Guantanamo Bay considered to be protected by the Constitution?

Here is a good legal discussion.
posted by Houstonian at 8:07 AM on May 13

It's been discussed a lot.

You're right - perhaps it's just my confirmation bias, since I'm much more familiar with the Geneva Conventions, I don't notice as much when the UNCAT is mentioned.

I guess the crux of my question is this - is there any reasonable doubt that the treatment of prisoners in Guantanamo Bay has violated the UNCAT (and other laws/treaties)? Despite all the media coverage, I'm still not clear about whether this has been a blatant violation of a treaty the US has signed and ratified, or if there are mitigating legal subtleties that I am not grasping.

And thanks for that link Houstonian - that answers my questions about the debate regarding the scope of the Constitution very nicely!
posted by Salvor Hardin at 9:35 AM on May 13

The infamous Bybee Memo is OLC's attempt to distort the UNCAT and the Torture Victims Protection Act so as to not prohibit enhanced interrogation tactics.
posted by ewiar at 12:02 PM on May 13

I think you are also missing the Fourth Geneva Convention - Protection of Civilian Persons in Time of War - which has been ratified by the United States.

Claiming that persons thrown into Guantanamo Bay were not prisoners of war does not allow torture.

The Fourth Convention forbids torture of anyone captured or brought into custody due during an armed conflict (Article 32).

The protections in the Fourth Convention are the baseline that are offered to everyone. Soldiers have additional protections afforded in the other conventions.
posted by Apollo's Favorite Mistake at 1:47 PM on May 20