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|Welcome to "Ask the State Department" -- an online interactive forum where you can submit questions to State Department officials.
John B. Bellinger III, Legal Adviser to the Secretary of State led an online discussion on the following topics: 1) "Detainees: Legal Framework and U.S. Policies" and 2) "Trial of Saddam Hussein and Other Iraqi Regime Officials."
John B. Bellinger III
Legal Adviser to the Secretary of State Biography
February 16, 2006
I welcome this opportunity to talk with you about the legal framework for U.S. detainee policy, as well as the trial of Saddam Hussein and other former top Iraqi leaders. The United States faces a great challenge in dealing with captured enemy fighters who we have the legal right to detain but whom we must treat humanely and consistently with all our relevant legal obligations. The Iraqis also face a tremendous challenge in trying figures involved in vast crimes, and we have worked with the Iraqis as appropriate to facilitate this process. I gave a briefing to the foreign press on these matters yesterday, and look forward to answering your questions on the web today.
D.K. and Linda write:
What is the U.S. position on the release of new photos depicting abuse of detainees at Abu Ghraib? Is the U.S. criticizing their release, and if so, why?
The acts depicted in these photos are abhorrent and sickening. The President has made clear that our policies and laws forbid torture and we will not tolerate torture of detainees in our custody. In response to the abuses at Abu Ghraib, the Department of Defense has conducted more than a dozen investigations and Congress has held over 30 hearings on the issue. Most importantly, eleven service members have been subjected to courts martial and punished for their reprehensible actions. The United States is committed to ensuring that each and every individual responsible for these acts is brought to justice.
In terms of the release of additional photos, it is important to remember that all of the abuses depicted in these photos have been disclosed in multiple forums already. The abuses were described in detail in numerous public reports, as well as in the public courts martial. Thus, the release of additional photos does not serve any informational purpose. Rather, the release will simply inflame anti-Western feelings in the Middle East, which directly puts in harm's way our troops in Iraq and Afghanistan , as well as Western civilians in that region. Moreover, this kind of release violates the privacy of those detainees depicted, who have to endure the humiliation of seeing their abuse displayed over and over again in public. Under these circumstances, release of more photos only serves to appeal to morbid curiosity and prurient interest at a great cost to the U.S. and to those abused.
Where in the Geneva Conventions does it talk about Enemy Combatants?
"Enemy combatants" generally refers to anyone engaged in hostilities in an armed conflict on behalf of a party to the conflict. A person would be a lawful enemy combatant if he or she fell under the definition in the Third Geneva Convention of someone entitled to "prisoner of war" status during detention.
The more common question we hear is about "unlawful combatants," which certain academics and others have asserted is not a concept found in the Geneva Conventions. We strongly disagree: the concept of "unlawful combatants" is well-recognized in international law by courts, in military manuals, and by international legal scholars. For example, Professor Adam Roberts, who has written widely on the law of armed conflict, has stated that the concept of unlawful combatants is implicit in the Geneva Conventions. Another leading scholar has noted that unlawful combatants, while legitimate targets for belligerent action, are not entitled to prisoner of war status if they are captured. What this means is that the Third and Fourth Geneva Conventions do not extend protections or privileges to combatants who don't follow the rules. In addition, they can be prosecuted merely for having participated in hostilities. Moreoever, there is no question that a State is authorized under the law of war to detain combatants - whether lawful or unlawful - in armed conflict.
Why doesn't the State Department publish the list of detainees and the reason for which these individuals were detained for? It would clarify the government's position as to the job is trying to do, and would present to society the suspicious actions these individuals were involved with to be detained for investigation, trials, etc.
By way of background, the Department of Defense has provided to the International Committee of the Red Cross a complete list of people in DoD custody at Guantanamo . Yours is a reasonable question, though, with regard to the wider public. We recognize that if we could make public more information about the detainees being held in Guantanamo - including their identities and the reasons we detained them - we would be able to make an even more compelling case to the American people and the rest of the international community about the need for us to continue to hold these detainees. At the same time, intelligence requirements make it difficult for us to provide this information, because we don't want to release facts that would undercut our ability to fight the war on terrorism.
We have tried recently to provide more information about the types of unlawful combatants detained at Guantanamo . For example, we have made public the fact that DoD is holding terrorist trainers, bomb makers, recruiters and facilitators, terrorist financiers, bodyguards for Usama Bin Laden, and potential suicide bombers. Specifically, one individual is an al-Qaeda explosives trainer who has given the USG information on the assassination of Northern Alliance leader Masood and on al-Qaeda's use of mines. Another is member of a terrorist cell in Afghanistan that targeted civilians, especially journalists and foreign aid workers, and was responsible for a grenade attack on a foreign journalist's car.
Where we have evidence of a detainee's crimes that can be used in a prosecution setting, DoD will bring the detainee's case before a military commission for it to hear the criminal case against him. When a detainee's case is referred, DoD makes his name and facts of the case against him public.
What is the U.S. Department of State's current strategy with regards to the remaining Abu Ghraib detainees? Is the strategy consistent with bringing democracy and justice to the Iraqi People?
If detainees are treated as POWs, shouldn't they be treated under the Geneva Convention, in order to keep positive reflection of the great American humanitarian and democratic image around the world?
We made clear at the outset of the Iraq war that the Geneva Conventions would apply to our conflict with Iraqi forces and with respect to the occupation of Iraq (which ended on June 28, 2004). The Multi-National Force - Iraq (MNF-I) currently holds several different categories of individuals, depending on when the person was picked up and whether he was entitled to POW status when he was detained. This is a bit technical, so please bear with me. People detained before the end of the occupation of Iraq who were entitled to POW status under the Third Geneva Convention remain entitled to POW protections until they are released, which will happen no later than the end of active hostilities. People interned as protected persons before the end of the occupation remain entitled to relevant protections of the Fourth Geneva Convention until they are released at the close of hostilities (if they're not released before then). Since June 28, 2004, MNF-I has interned people (such as insurgents) whose detention is necessary for imperative reasons of security. It does so under its UN mandate. MNF-I releases internees when it determines that they no longer pose an imperative threat to security to Iraq, the Iraqi people, or the Coalition.
With respect to the detainees held in Guantanamo, Al Qaeda detainees are not entitled to the Third Geneva Convention's protections because Al Qaeda is not a high contracting party to that Convention. Although Afghanistan was a party to the Third Geneva Convention, the Taliban detainees did not qualify for POW status under Article 4 of the Convention, because they did not meet the conditions in that Article. Nevertheless, the President determined in February 2002 that, as a matter of policy, the United States Armed Forces should treat the Al Qaeda and Taliban detainees held at Guantanamo humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Third Geneva Convention.
Would an international court have been better than the Iraqi Tribunal?
Which is the difference between Milosevic's case and Saddam's case? Why isn't Saddam judged at the International Criminal Tribunal at The Hague?
Some have argued that Saddam Hussein should be tried before an international tribunal specially created for that purpose, or before the International Criminal Court. The Iraqis, however, chose to try Saddam and others in his regime before a domestic Iraqi tribunal. In fact, very quickly after the fall of Saddam, the Iraqis established a tribunal to prosecute senior-level former regime officials for war crimes, crimes against humanity, genocide, and three crimes based in Iraqi law.
The Iraqis chose to use a domestic court, with international support, so that trained Iraqi judges and prosecutors could conduct fair and impartial trials and the Iraqi judicial system would develop stronger capacities to investigate and prosecute serious crimes over the long term. The Iraqis also chose a domestic court because they judged that it would better address Iraq 's reconciliation needs. At the same time, the Iraqis have benefited from the international experience in this area - the Tribunal draws heavily on the experience and precedent of UN tribunals for the former Yugoslavia , Rwanda , and Sierra Leone .
We support this Iraqi decision and have allocated $128 million to support this Iraqi-led process. We believe that international practice should promote domestic accountability. It should reinforce, not erode, domestic legal systems. It is important for the international community to get behind the Iraqi decision and support Iraqis as they pursue and obtain justice for the crimes committed by the former regime.
I believe we are going much too far allowing Saddam Hussein to create a circus in the trial and, at some moments, managing him the process with complaints, hunger strikes and blames. This may be a boomerang against America , because being so tolerant we may look weak or lacking of reasons to judge him. Your opinion?
I should first clarify that the tribunal trying Saddam Hussein is an Iraqi court, as part of an Iraqi effort and an Iraqi-managed process. The judges are Iraqi. And the decisions and orders of the Tribunal are Iraqi. The U.S. role is to support the Iraqis' efforts, taking care to respect the Tribunal's independence.
Second, the Iraqi High Tribunal is trying its first case against Iraq 's former dictator, so it should be no surprise that the first trial has been full of challenges. The Iraqi judges on the Tribunal are facing these challenges with great resolve and personal courage. It is a testament to the incredible resilience of Iraqi judges who very much want to restore the rule of law in Iraq.
Despite Saddam's outbursts, the Tribunal has continued to hear witnesses describe in grim detail their painful experiences in the hands of the defendants. Their personal suffering should not be overlooked or downplayed in this debate. Through their testimony, the Tribunal is playing a critical role in Iraq 's national reconciliation.
Dispensing international criminal justice has often been challenging. Many courts have had to manage disruptive tactics by defendants, whether it was Herman Goering at Nuremberg or Slobodan Milosevic at The Hague . Although the daily work of the Iraqi Tribunal has not received the constant coverage outside of Iraq that it has received in Iraq, the process is, in fact, working.