United States of America
Practice Relating to Rule 118. Provision of Basic Necessities to Persons Deprived of Their Liberty
The US Field Manual (1956) reproduces Articles 25–32, 72 and 73 of the 1949 Geneva Convention III and Articles 76, 85, 87 and 89–92 of the 1949 Geneva Convention IV.
The US Air Force Pamphlet (1976) stresses “the obligations of the Detaining Power in furnishing quarters, food and clothing to POWs [prisoners of war]”. It points out that “food rations, for example, must be sufficient in quality, quantity and variety to keep prisoners of war in good health and avoid loss of weight or nutritional deficiencies”.
The US Instructor’s Guide (1985) states:
Even though you are a prisoner, you must receive sufficient daily rations to ensure your good health. In addition, you must have sanitary living quarters which provide protection from the weather. You are also entitled to medical care … You may also receive parcels containing foodstuffs, clothing and educational, religious or recreational materials.
The US Operational Law Handbook (1993) provides: “There is a legal obligation to provide adequate food, facilities and medical aid to POWs [prisoners of war].”
The US Naval Handbook (2007) states:
All detainees shall:
… Receive appropriate medical attention and treatment
… Receive sufficient food, drinking water, shelter, and clothing.
The US Manual on Detainee Operations (2008) states:
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(3) The  Geneva Convention III
… This convention … regulates the treatment of EPWs [enemy prisoners of war] (care, food, clothing, medical care, and housing).
In the chapter on “Roles and Responsibilities, the manual states:
b. … Provides first responder capability to the detainee population. Coordinates forward resuscitative care or higher capability.
c. Advises the commander on medical and health-related issues. Coordinates for medical consultations with appropriate medical specialists and coordinates for transportation and escort of detainees to appointments, if required.
d. Coordinates with the civil affairs officer to ensure detainee medical concerns are being considered for possible presentation at the civil-military operations center.
e. Ensures the medical requirements within the detention facility are met consistent with Department of Defense Instruction 2310.08E, Medical Program Support for Detainee Operations, and its implementing orders and programs. Such requirements will include:
(1) Examination and documentation of detainees’ physical condition upon initiation of detention.
(2) Monthly recording of detainees’ weight.
(3) Monitoring of general cleanliness of the facility (latrines, showers, and wash stations).
(4) Examining detainees for contagious diseases.
(5) Providing detainee access to medical care, such as sick call.
f. Coordinates for preventive medicine inspections of the facility.
g. Coordinates preventative medicine inspection of food sources. Advises the DFC [detention facility commander] of caloric content and dietary suitability of detainee rations.
In the chapter on “Planning for Detainee Operations”, the manual states:
Logistics. The following issues are a few examples of some of the unique logistic obligations and considerations associated with detention operations:
(1) Temperature and Lighting. To the extent feasible, the facilities will be protected from dampness, adequately heated and cooled, and appropriately illuminated.
(2) Food and Water. When feasible, detainees will be fed three meals a day. At a minimum, basic daily food rations will be sufficient in quantity, quality, and variety to keep detainees in good health and to prevent significant loss of weight or the development of nutritional deficiencies. The justification for any deviation from the three meals per day standard will be documented by the commander of the detention facility and should be reviewed by both medical and legal support personnel. Account will also be taken of the habitual diet and religious/cultural requirements of the detainees. The detaining power will supply detainees who work with such additional rations as are necessary for the labor in which they are employed. Sufficient drinking water will be supplied to detainees.
(3) Clothing. Adequate clothing for the climate will be provided, and a clothing replacement program will be instituted at each facility. Issued clothing should be uniform in color for identification purposes. If replacement clothing is not available, commanders will attempt to provide for the cleaning of detainee clothing in order to protect the health and well-being of detainees until a clothing exchange program can be instituted.
(4) Financial Management. The JFC [joint force commander] is responsible for providing EPWs [enemy prisoners of war] and CIs [civilian internees] pay. The joint task force comptroller may designate a component to provide currency and other required support. The designated component will also ensure that controls are established to process deposits to and payments from designated accounts properly.
… Physical and Intellectual Activities. Physical and intellectual activities for detainees contribute to the maintenance of good order and discipline within the detainee population. Commanders may accommodate these interests when doing so is both feasible and consistent with mission requirements. The extent to which accommodation is considered and/or implemented will be determined by the needs of the facility population and will take into account both security limitations and available resources. Authorized activities and programs include, but are not limited to, participation in physical exercise, access to outdoor areas, and the practice of intellectual, educational, and recreational pursuits.
… Medical Care, Dental Care, and Sanitation
. The detaining power will take all sanitary measures necessary to ensure the cleanliness and healthfulness of facilities, and to prevent epidemics. Detainees will have access to sanitary facilities that conform to preventive medicine sanitation standards. In facilities where women detainees are accommodated, feminine hygiene supplies will be provided. Detainees will receive a full medical history and physical exam during in-processing. A medical record will be created for each detainee and a narrative summary of that record will be forwarded to the detainee’s new facility location. If the detainee is released, he/she should be given a narrative clinical summary detailing past and present medical status and recommendation of medical follow-up, if any. All treatment provider names will be redacted. No records will be released directly to the detainee or a foreign country. Patient services should include first responder, forward resuscitative, and theater hospitalization capabilities, as operational circumstances permit. As a contribution to the maintenance of good order, the DFCs [detention facility commanders] should also provide mental health services (mental health treatment, assessment, and therapy) to detainees when feasible.
In the chapter on “Capture and Initial Detention and Screening”, the manual states:
A TIF [theater internment facilities] is an improved, semi-permanent, or permanent facility that can hold detainees until they are released or until it is determined that out-of-theater evacuation is necessary … Ideally, the TIF will have:
(2) Permanent structures, lighting, water, utilities, and hygiene and sanitation facilities.
(3) Ability to provide forward resuscitation, theater hospitalization, and higher medical care to detainees.
(7) Support for all classes of supply and services.
Also in this chapter, the manual states:
Commanders should attempt to utilize building-type structures for internment facilities. However, although this may be a preference, there is no prohibition against using less-improved facilities when they offer the best available option for satisfying all legal and policy obligations related to detainee treatment, particularly when use of an improved structure is not feasible. There is no legal requirement to provide detainees with conditions better than those of the U.S. forces executing the detainee operation mission.
In the chapter on “Transport Procedures”, the manual states:
In-transit Operations for Escort Missions
In-transit operations are the most vulnerable period of detainee operations. The security escort team leader will have tactical command and control of all assets in the movement element, from the element’s departure of a DCP [detainee collection point], DHA [detainee holding area], or TIF [theater internment facility] until the element arrives at another facility. The security escort team leader will adopt tactics, techniques, and procedures to meet mission requirements including feeding, latrine escort, medical aid, and any emergency actions aboard the conveyance.
In the chapter on “Theater or Strategic Internment Facility”, the manual states:
Key organization elements in the TIF/SIF [theater internment facility/strategic internment facility] may include the following: … detainee hospital … Special staff considerations may include: … surgeon, forensic psychologist, forensic psychiatrist, medical plans and operations officer, preventive medicine officer, environmental health officer …
… Facility operating procedures will make allowance for the habits and customs of the detainees and will in no case be prejudicial to their health. The foregoing comment will apply in particular to the housing units of detainees as regards both total surface and minimum cubic space, and the general installation, bedding, and blankets (refer to  Geneva Conventions, DODDs [Department of Defense Directives], and all applicable regulations). Quarters furnished to detainees must protect the detainees from the negative effects of the natural environment, must be adequately lit and heated (particularly between dusk and lights-out), and must have adequate precautions taken against the dangers of fire.
In the chapter on “Transfer and Release from Detention”, the manual states:
5. Transfer Between Department of Defense Facilities
… The DFC [detention facility commander] will:
(6) Provide rations and basic needs to the detainees during the movement.
(9) Ensure detainees are given a full physical, instructions for medication, and a supply of medications.
(10) Ensure all appropriate health and disciplinary records accompany the detainee.
6. Transfer or Release Mission
a. For transfer or release from within the JOA [joint operations area] to either other detention facilities or direct release of the detainee back into the community, the following requirements should be met:
(5) Ensure logistic resources are adequate (food, water, etc.).
Figure VII-1. Transfer Accountability Measures
… Ensure released detainee is provided with appropriate food, clothing, and equipment for safe transition and movement upon release.
The manual also states:
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee
… A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power.
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(iv) detainees in the program receive the basic necessities of life, including adequate food and water, shelter from the elements, necessary clothing, protection from extremes of heat and cold, and essential medical care.
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 6. Humane Standards of Confinement
. No individual currently detained at Guantánamo shall be held in the custody or under the effective control of any officer, employee, or other agent of the United States Government, or at a facility owned, operated, or controlled by a department or agency of the United States, except in conformity with all applicable laws governing the conditions of such confinement, including Common Article 3 of the  Geneva Conventions. The Secretary of Defense shall immediately undertake a review of the conditions of detention at Guantánamo to ensure full compliance with this directive.
In 1991, in a diplomatic note to Iraq concerning operations in the Gulf War, the United States stated: “Iraqi prisoners of war … will not be denied food, water or medical treatment.”
In a subsequent diplomatic note, the United States reminded the Government of Iraq: “Prisoners of war … must be afforded food, water, clothing and every guarantee of hygiene and healthfulness.”
In a concurrent resolution adopted in 2000, the US Congress expressed its sense concerning the war crimes committed by the Japanese military during the Second World War, in particular the starvation of many US military and civilian prisoners.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris
of the United States that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees held at the US naval base in Guantánamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
The detainees are being provided shelter, new clothing and shoes, sleeping pads and blankets and three culturally-sensitive meals a day. Indeed, the detainees have gained an average of thirteen pounds (over five kilos) each since their arrival in Guantánamo Bay …
The United States is also providing the detainees excellent medical care. … The medical treatment provided to detainees at Guantánamo is on a par with treatment afforded to members of the U.S. Armed Forces. For example, detainees have received routine medical care, prescription medication, eye examinations and corrective eyewear, and when serious medical concerns require, even hospitalization and surgery.
In March 2003, a special mental health unit was opened where detainees suffering from depression or other psychological difficulties or diseases receive individualized care and supervision. Although there have been some suicide attempts by detainees, discovery and rapid intervention by military guards have prevented detainee deaths. These individuals were also seen by medical personnel. These attempts are taken seriously and the United States makes every effort to prevent them.
The detainees have been given personal toiletries, new towels and washcloths, and an opportunity to take showers. … Newly-constructed detention facilities include indoor plumbing, more secure exercise areas, and improved shelter from the sun, which improves upon the original, temporary detention facilities which are no longer in use.
In May 2004, Major General Antonio M. Taguba completed his report of an investigation, ordered by the Commander Coalition Forces Land Component Command, into allegations of detainee abuse and maltreatment by members of the 800th Military Police Brigade at Abu Ghraib Prison (Baghdad Central Confinement Facility (BCCF)). The report referred to a Report on Detention and Corrections in Iraq, dated 5 November 2003, conducted by Major General Donald J. Ryder, US Army Provost Marshal General, in reference to which General Taguba stated: “The Findings and Recommendations of MG Ryder’s Team are thorough and precise and should be implemented immediately”. One of the findings in General Ryder’s report was:
EPWs [Enemy Prisoners of War] and Civilian Internees should receive the full protections of the Geneva Conventions, unless the denial of these protections is due to specifically articulated military necessity (e.g., no visitation to preclude the direction of insurgency operations).
In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees held at the US Naval Base in Guantánamo Bay, Cuba. The US Government’s response stated in part:
Guantánamo detainees receive:
• 3 nutritionally complete meals daily that meet cultural dietary requirements when requested and any medical requirements that may be applicable.
• Adequate shelter, clothing and hygiene facilities.
• Where security permits, detainees are eligible for communal living in a Medium Security Facility, with fan-cooled dormitories, family-style dinners, and increased outdoor recreation time, where they play board games like chess and checkers, and teamsports like soccer and basketball. Regular exercise, including recreation several hours a day for the most compliant detainees.
• Excellent medical, dental and optical care comparable to or exceeding that received by US Armed Forces deployed overseas.
• Wounded enemy combatants are treated humanely and nursed back to health, amputees are fitted with modern prosthetics, and those detainees who may need it are given physical therapy.
• The lives of insurgents and detainees have been saved by superior medical treatment provided by US military personnel.
• In order to protect the life and health of detainees, authorities are, as necessary, involuntarily feeding detainees on a hunger strike using acceptable medical protocols and procedures that are employed in United States’ domestic prison facilities. As of March 6, 2006, there are only four detainees on hunger strike at Guantánamo Bay.
In June 2006, the US Assistant Secretary of Defense for Health Affairs participated in a media roundtable, at which he announced the launch of a Defense Department policy document addressing medical program support for detainees, entitled “Medical Program Support for Detainee Operations”. In doing so, he stated:
[H]ealth care for detainees will be provided with the consent of the detainee with certain exceptions that are identified. Some of those relate to life-saving emergencies or public health, or to, for example in the matter of hunger striking, to save the life of or prevent serious bodily harm to the detainee.
Responding to a question regarding the policy on force-feeding of detainees, Dr Winkenwerder stated:
DR. WINKENWERDER: We have a policy that is to preserve life. That policy is an ethical policy. It’s in the best interests of the individual who is a hunger striker, for his life to be preserved, in our judgment.
Q Is that – does medical science in general agree that it’s the caregiver’s decision on that, not the patient’s?
DR. WINKENWERDER: Well, that depends upon the situation. And the answer is that in – there are two principles: the principle of beneficence, or doing right by people; and the principle of autonomy or self-determination. And in the case of a person who has a terminal disease, typically medical providers will honor the request for treatment to be withdrawn. In some cases they won’t, and we all know about the famous court case of a year or so ago when the debate, the Schiavo case, the debate between the very closest family members. And our policy reaffirms what our practice has been, which is – and which is to preserve the life of the person who is under detention. I might add that it is consistent with the U.S. law. It is consistent with the policy of the Bureau of Federal Prisons, title – and you'll see it in the document – Title 28, Code of Federal Regulations – all of these same procedures.
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
I'm announcing today that Khalid Sheikh Mohammed, Abu Zubaydah, Ramzi bin al-Shibh, and 11 other terrorists in CIA custody have been transferred to the United States Naval Base at Guantánamo Bay. (Applause.) They are being held in the custody of the Department of Defense.
These men will be held in a high-security facility at Guantánamo. The International Committee of the Red Cross is being advised of their detention, and will have the opportunity to meet with them. Those charged with crimes will be given access to attorneys who will help them prepare their defense – and they will be presumed innocent. While at Guantánamo, they will have access to the same food, clothing, medical care, and opportunities for worship as other detainees. They will be questioned subject to the new U.S. Army Field Manual, which the Department of Defense is issuing today. And they will continue to be treated with the humanity that they denied others.
I know Americans have heard conflicting information about Guantánamo. Let me give you some facts. Of the thousands of terrorists captured across the world, only about 770 have ever been sent to Guantánamo. Of these, about 315 have been returned to other countries so far – and about 455 remain in our custody. They are provided the same quality of medical care as the American service members who guard them.
In February 2008, in a statement on the US Department of Justice’s legal review of the Central Intelligence Agency (CIA) programme of detention and interrogation before the House Committee on the Judiciary Sub-Committee on the Constitution, Civil Rights, and Civil Liberties, the Principal Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, stated:
The CIA program is now operated in accordance with the President’s executive order of July 20th, 2007, which was issued pursuant to the Military Commissions Act . The President’s executive order requires that the CIA program comply with a host of substantive and procedural requirements.
… All detainees in the program must be afforded the basic necessities of life, including adequate food and shelter and essential medical care; they must be protected from extremes in temperature … The Director of the CIA must have rules and procedures in place to ensure compliance with the executive order.
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State Legal Adviser stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. … [A]n independent review ordered by President Obama found the conditions there [Guantánamo] far surpass the standards of Common Article III of the  Geneva Conventions.