The Geneva Conventions loom large over U.S. terrorist detainee
policy-even when the conventions may not strictly, as a matter of
law, apply. In addition to their legal force, the conventions carry
the weight of moral authority. It is no small matter, then, to
question whether U.S. detention efforts fall short of the standards
of Article 3-an article that is common to all four Geneva
Conventions (hence its designation as "Common Article 3," or CA3).
But that was the implication when President Barack Obama ordered
the secretary of defense to conduct an immediate 30-day review of
the conditions of detention in Guantanamo to "ensure full
compliance" with CA3.
What exactly such compliance requires is open to debate.
CA3: Already in Force
From the military's point of view, Common Article 3 has been in
full force for over two and a half years at Guantanamo. In June
2006, the United States Supreme Court ruled in the case of
Hamdan v. Rumsfeld that America's armed conflict with
al-Qaeda was non-international in character and, as such, was
governed by CA3. Within a week of that ruling, Deputy
Secretary of Defense Gordon England issued a department-wide
memorandum requiring all Department of Defense components to comply
with CA3. Shortly thereafter, all components of the Department of
Defense reported that they were in full compliance; this included
the Joint Task Force in charge of detention operations at
Guantanamo Bay, Cuba.
On September 6, 2006, the Department of Defense issued a
department-wide directive applicable to all detainees in DOD
custody or effective control. That directive incorporated verbatim
CA3 of the Geneva Conventions and required the entire Department of
Defense, including Guantanamo, to comply with CA3.
Whether this September 2006 directive marks the end of the story
depends on what the text of CA3 means. And that is not so
straightforward an inquiry.
Common Article 3 is the third article common to each of the four
Geneva Conventions. The Geneva Conventions codify much, albeit not
all, of the law regulating armed conflict and the humane treatment
of persons detained during armed conflict. The four conventions, as
most recently revised and expanded in 1949, comprise a system of
safeguards that attempt to regulate the ways wars are fought and to
provide protections for individuals during wartime. The conventions
themselves were a response to the horrific atrocities of World War
II. The first convention covers soldiers wounded on the
battlefield, the second covers sailors wounded and shipwrecked at
sea, the third covers prisoners of war, and the fourth covers
civilians taken by an enemy military or otherwise impacted.
What CA3 precisely requires and what it forbids is subject to
debate. According to the actual language of CA 3, detainees "shall
in all circumstances be treated humanely," but the term
humanely is never defined. "[O]utrages upon personal
dignity, in particular humiliating and degrading treatment," are
strictly prohibited, whatever they may be. Also prohibited are
"cruel treatment and torture," but again, there is no definition of
these terms. CA3 is a good statement of principles, but aside from
banning murder and hostage-taking, it provides no concrete guidance
to anyone actually holding detainees.
Nonetheless, CA3 is a part of U.S. treaty and criminal law.
Congress, in the 1999 amendments to the War Crimes Act, made it a
crime to violate CA3. For certain acts, such as murder, taking
hostages, and obvious acts of torture, the prohibited conduct
should be clear, since Congress has defined the elements necessary
to prove these crimes in statutory law.
But what exactly constitutes "outrages upon personal dignity, in
particular humiliating and degrading treatment"? No universal or
even national consensus as to the definition of these terms exists.
There is, however, no doubt that what constitutes humiliation or
degradation, as distinct from acceptable treatment, is highly
context-specific and culture-dependent. For example, any custodial
interrogation or incarceration entails elements of humiliation that
would be unacceptable in other contexts. Likewise, some societies
find placing women in a position of authority, as guards or
interrogators, over detained individuals unacceptable; for other
cultures that believe in basic gender equality, these practices are
not even remotely humiliating. Even Jean Pictet, the world-renowned
human rights attorney who helped draft the Geneva Conventions and
led the International Committee of the Red Cross, noted that with
respect to CA3, the drafters wanted to target those acts that
"world public opinion finds particularly revolting." This is a
highly uncertain guide.
Pictet also stated that the outrages upon personal dignity
referenced by the treaty were of a sort "committed frequently
during the Second World War." This too gives little guidance.
Presumably, the prohibition would include forcing ethnic or
religious minorities to wear insignia for purposes of
identification, such as the infamous yellow star imposed by the
Nazi regime on the Jewish population of Germany and occupied
Europe. What else it may include is very much open to debate; the
Axis Powers were ingenious in the area of humiliating and degrading
Principles of CA3
In interpreting this important provision, the United States
would be justified in following some basic principles inferred from
First, CA3 imposes obligations on the parties to a conflict.
This suggests that to violate the provision, the conduct must be
both of a sort that world opinion finds "particularly revolting"
and systemic, undertaken as a matter of policy rather than simply
the actions of individual miscreants or criminals. Thus, although
the treatment of some detainees by a few guards may have been
outrageous, humiliating and degrading-and perhaps criminal-it would
not violate CA3 unless it was ordered as a matter of policy or the
responsible authorities failed to suppress and punish the conduct
once it became known to them. All allegations of mistreatment are
required to be investigated as a matter of written order.
Likewise, the use of the law of war paradigm cannot, by
definition, be a violation of CA3, even if its specific application
produces a less than ideal result. For example, detaining
individuals believed to be enemy combatants is no violation of CA3,
even if subsequent review concludes that their status
classification was erroneous and they were not, in fact, enemy
combatants. Under the same logic, and despite some oft-invoked but
misguided criticisms of the U.S. detention policy, detaining
captured enemy combatants for the duration of hostilities and not
charging them with specific criminal offenses does not violate
Second, the purpose of CA3 was to compel compliance with the
most basic requirements in the context of a civil war or other
internal conflict, where it was acknowledged that the other
provisions of the four conventions would not apply. Thus, it is a
fair assumption that CA3 should not be interpreted as simply
incorporating those other Geneva Convention provisions into the
conflicts to which CA3 is applicable. Outrages upon personal
dignity would not, therefore, include simply denying captives the
rights and privileges of honorable prisoners of war under the third
convention or of civilian persons under the fourth.
Third, CA3, like any other specific treaty provision, should be
construed in the context of the overall treaty regime of which it
is a part. In this regard, the overarching purpose of the 1949
Conventions (and all of the other laws of war-related treaty norms)
has been to ensure that the popular passions aroused by war and
even the consideration of military necessity do not vitiate the
fundamental requirements of humane treatment. To suggest that, for
example, the wartime standards of treatment should be fundamentally
superior to the peacetime standards would turn this logic upside
down and is untenable. Accordingly, such incarceration-related
practices as single-cell confinement and involuntary-feeding-which,
subject of course to appropriate safeguards, are used in civilian
penal institutions of many Western democracies-cannot, by
definition, infringe CA3.
There is no doubt that the intentions reflected in CA3 are
laudable, but it is a less than perfect standard for the law of
war, which must provide real and precise answers to an entire range
of specific questions. Indeed, CA3's language is ambiguous,
capacious, and difficult to apply in some circumstances.
Fortunately, U.S. detention operations in general, and post-2006 in
particular, have featured conditions for detainees that-structured
in ways that provide more than sufficient compliance with
CA3-compare favorably with any detention facilities in the history
David Rivkin and Lee Casey are
partners in the Washington, D.C., office of Baker and Hostetler LLP
and served in the Justice Department during the Reagan and George
H. W. Bush Administrations. Charles Stimson is a Senior Legal
Fellow at The Heritage Foundation and served as deputy assistant
secretary of defense for detainee affairs from 2006 to 2007.