United States of America
Practice Relating to Rule 87. Humane Treatment
Section D. Persons deprived of their liberty
The US Field Manual (1956) provides: “Prisoners of war must at all times be humanely treated.” It further stipulates: “Protected persons who are confined pending proceedings or serving a sentence involving loss of liberty shall during confinement be humanely treated.”
The US Air Force Commander’s Handbook (1980) provides: “A prisoner of war is always to be humanely treated, and must be protected against violence, intimidation, insults and public curiosity.”
The US Soldier’s Manual (1984) provides that all captured combatants, whether POWs or not, shall be treated humanely.
The US Instructor’s Guide (1985) states: “American soldiers must treat all prisoners of war, other captured or detained personnel … humanely.” It reminds commanders that “the Hague and the Geneva conventions and the customary law of war explicitly require you to treat captured and detained personnel humanely”.
The US Operational Law Handbook (1993) recognizes that soldiers have a duty to treat all prisoners of war humanely.
The US Air Force Pamphlet (1976) refers to Article 13 of the 1949 Geneva Convention III and provides: “Prisoners of war must at all times be humanely treated.”
The US Naval Handbook (1995) provides: “Combatants that have surrendered or otherwise fallen into enemy hands are entitled to prisoner-of-war status and, as such, must be treated humanely.”
The Handbook further stipulates: “All interned persons must be treated humanely.”
The US Rules of Engagement for Operation Desert Storm (1991) instruct forces to “treat all prisoners humanely and with respect and dignity”.
The US Naval Handbook (2007) states:
The law of armed conflict requires humane treatment for all persons who are detained. …
11.2 Humane Treatment
All persons in the control of DOD [Department of Defense] personnel (military, civilian, or contractor employee) during armed conflict, or any other military operation, must be treated humanely under international law and U.S. policy until their final release, transfer, or repatriation. Humane treatment includes compliance with Common Article III of the Geneva Conventions of 1949. Some persons who are detained may also qualify for prisoner-of-war status, which provides benefits beyond the baseline humane treatment standard. If doubt exists as to how to treat a particular detainee, you should seek guidance through your chain of command. Until this doubt has been resolved, you must provide the detainee the protections of the Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949.
… Humane treatment is at a minimum protection from unlawful threats or acts of violence and deprivation of basic human necessities and will be afforded to all detained persons without adverse distinction.
All detainees shall … [b]e respected as human beings.
The Handbook also states: “Unlawful combatants … are entitled to humane treatment as a matter of law and U.S. policy.”
The Handbook further states: “All interned persons must be treated humanely.”
The US Manual on Detainee Operations (2008) states:
Department of Defense Directive (DODD) 2310.01E, The Department of Defense Detainee Program establishes the overarching Department of Defense (DOD) detainee policy and directs that all detainees shall be treated humanely at all times during all armed conflicts, however characterized, and in all other military operations. The standards of treatment set forth in the directive apply to all DOD components and DOD contractors assigned to or supporting the DOD components engaged in, conducting, participating in, or supporting detainee operations. These standards also apply to all non-DOD personnel as a condition of permitting access to internment facilities or to detainees under DOD control.
… There is no exception to this humane treatment requirement. Accordingly, the stress of combat operations, the need for intelligence, or deep provocation by captured and/or detained personnel does not justify deviation from this obligation.
The manual also states:
During the conduct of modern military operations, members of the Armed Forces of the United States must be prepared to detain a wide array of individuals. Some of these detained persons (hereafter referred to as detainees) will result from international armed conflict and will fall into the conventional category of enemy prisoner of war (EPW). Other categories of detainees, however, … may result from the particular … status of the detainee (unlawful enemy combatants [ECs], civilians, etc.). Regardless of the detainees’ legal status, U.S. forces must treat all detainees humanely and be prepared to properly control, maintain, protect, and account for detainees in accordance with … applicable U.S. law, the law of war, and applicable U.S. policy.
The manual further states:
Detaining officials must recognize that detained enemy combatants who have not satisfied the applicable criteria in the … [1949 Geneva Convention III] will have a status as unlawful ECs, but are still entitled to humane treatment.
The manual also 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 provides for the humane treatment of EPWs.
e. Common Article 3 to the Geneva Conventions of 1949, as construed and applied by U.S. law, establishes minimum standards for the humane treatment of all persons detained by the United States, coalition, and allied forces.
The manual also states within Chapter III on “Planning for Detainee Operations”:
Because imposition of physical punishment is inconsistent with the humane treatment obligation, commanders must understand the relationship between reward and punishment. As a general rule, withdrawal of privileges provided above the minimum required level of humane treatment is often the most effective sanction for disciplinary infractions.
The manual also states within this same chapter:
Detainees will be protected from public curiosity at all times. Strict compliance with this requirement is essential. There is no distinction between international and domestic media with regard to this obligation. Media attention concerning detainees is likely to be substantial. Commanders and staffs should anticipate such attention and ensure that supporting public affairs personnel develop procedures, in advance, for dealing with media requests for visits and information … Commanders will prepare and coordinate, in advance, public affairs plans for events such as detainee movements, transfers, or releases, with both the transferring and receiving commanders.
The manual states within Chapter IV on “Capture and Initial Detention and Screening”:
In any given JOA [joint operations area], any element of the joint force may find itself on a mission in which individuals are captured or placed under the control of U.S. forces. The efficient and effective control, processing, detention, and intelligence exploitation of such personnel is often critical to the success of U.S. forces. The humane treatment and proper care of detained personnel as they are moved to either temporary or permanent internment facilities support this goal.
Capturing units conduct tactical questioning (TQ) for combat information relative to the commander’s critical information requirements. However, the need to obtain information to satisfy these requirements is never a justification to deviate from the obligation to treat detainees humanely.
The Manual states within Chapter V on “Transport Procedures”:
3. 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 interment facility] until the element arrives at another facility … Detainees … will be protected from public curiosity (including avoidable exposure to media) …
4. Detainee Movement by Land Transportation
… Capturing units and initial transfers will primarily use land transportation. Further movement of detainees by land transportation should be minimized to limit exposure to hazards, public curiosity, and the media.
The manual also states: “Subordinate joint force commanders (JFCs) and component commanders are primarily responsible for ensuring that detainees are treated humanely at all times”.
In the chapter “Roles and Responsibilities”, the Manual states:
5. Joint Force Commanders
a. Ensure that detainees are treated humanely at all times.
6. Component Commanders
a. Ensure that detainees are treated humanely at all times.
7. Commander, Detainee Operations
e. Ensure humane treatment of detainees …
m. Ensure responsibilities of the joint strategic exploitation center, JIDC [joint interrogation and debriefing center] commander(s), and the detention facility commanders (DFCs) are clearly delineated, and all procedures coordinated, in order to accomplish intelligence activities efficiently at the JIDC and security requirements effectively at all facilities while treating all detainees humanely.
8. Detention Facility Commander
a. Ensuring the humane treatment of detainees at all times and under all circumstances.
The manual also states:
JFCs [joint force commanders] will ensure that all detainees are treated humanely and IAW [in accordance with] U.S. law, the law of war, and applicable U.S. policy. DODD 2310.01E requires that all DOD personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949.
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 January 2002, the US Secretary Department of Defense issued a memorandum for the Chairman, Joint Chiefs of Staff, regarding the status of Taliban and Al Qaida. This said, in part:
The United States has determined that Al Qaida and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Conventions of 1949.
The Combatant Commanders shall, in detaining Al Qaida and Taliban individuals under the control of the Department of Defense, treat them humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.
In February 2002, the US President issued a memorandum to senior members of his administration regarding the humane treatment of Taliban and al Qaeda detainees. This stated:
1. Our recent extensive discussions regarding the status of al Qaeda and Taliban detainees confirm that the application of Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, (Geneva) to the conflict with al Qaeda and the Taliban involves complex legal questions. By its terms, Geneva applies to conflicts involving “High Contracting Parties,” which can only be states. Moreover, it assumes the existence of “regular” armed forces fighting on behalf of states. However, the war against terrorism ushers in a new paradigm, one in which groups with broad, international reach commit horrific acts against innocent civilians, sometimes with the direct support of states. Our nation recognizes that this new paradigm – ushered in not by us, but by terrorists – requires new thinking in the law of war, but thinking that should nevertheless be consistent with the principles of Geneva.
2. Pursuant to my authority as commander in chief and chief executive of the United States, and relying on the opinion of the Department of Justice dated January 22, 2002, and on the legal opinion rendered by the attorney general in his letter of February 1, 2002, I hereby determine as follows:
a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al Qaeda in Afghanistan or elsewhere throughout the world because, among other reasons, al Qaeda is not a High Contracting Party to Geneva.
b. I accept the legal conclusion of the attorney general and the Department of Justice that I have the authority under the Constitution to suspend Geneva as between the United States and Afghanistan, but I decline to exercise that authority at this time. Accordingly, I determine that the provisions of Geneva will apply to our present conflict with the Taliban. I reserve the right to exercise the authority in this or future conflicts.
c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to “armed conflict not of an international character.”
d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al Qaeda, al Qaeda detainees also do not qualify as prisoners of war.
3. Of course, our values as a nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not legally entitled to such treatment. Our nation has been and will continue to be a strong supporter of Geneva and its principles. As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
4. The United States will hold states, organizations, and individuals who gain control of United States personnel responsible for treating such personnel humanely and consistent with applicable law.
5. I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva.
6. I hereby direct the secretary of state to communicate my determinations in an appropriate manner to our allies, and other countries and international organizations cooperating in the war against terrorism of global reach.
In December 2002, the US Secretary of Defense approved a series of interrogation techniques for use on detainees at the US Guantanamo Bay Detention Facility in Cuba that had been recommended to him in a memorandum from the Department of Defense General Counsel, William Haynes II. The memorandum had stated:
The Commander of USSOUTHCOM has forwarded a request by the Commander of Joint Task Force 170 (now JTF GTMO) for approval of counter-resistance techniques to aid in the interrogation of detainees at Guantanamo Bay (Tab A).
The request contains three categories of counter-resistance techniques, with the first category the least aggressive and the third category the most aggressive (Tab B).
I have discussed this with the Deputy, Doug Feith [Undersecretary of Defense for Policy] and General Myers [Chairman of the Joint Chiefs of Staff]. I believe that all join in my recommendation that, as a matter of policy, you authorize the Commander of USSOUTHCOM to employ, in his discretion, only Categories I and II and the fourth technique listed in Category III (“Use of mild, non injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing”).
While all Category III techniques may be legally available, we believe that, as a matter of policy, a blanket approval of Category II techniques is not warranted at this time. Our Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint.
RECOMMENDATION: That SECDEF approve the USSOUTHCOM Commander’s use of those counter-resistance techniques listed in Categories I and II and the fourth technique listed in Category III during the interrogation of detainees at Guantanamo Bay.
In January 2003, the Secretary of Defense rescinded that approval for the Category II and III techniques:
My December 2, 2002, approval of the use of all Category II techniques and one Category III technique during interrogation at Guantanamo is hereby rescinded. Should you determine that particular techniques in either of these categories are warranted in an individual case, you should forward the request to me. Such a request should include a thorough justification for the employment of these techniques and a detailed plan for the use of such techniques.
In all interrogations, you should continue the humane treatment of detainees, regardless of the type of interrogation technique employed.
In April 2003, the US Secretary of Defense issued a Memorandum for the Commander US Southern Command, which approved the use of specific counter-resistance techniques, subject to certain limitations, including that their use be limited to interrogations of unlawful combatants held at Guantanamo Bay, Cuba. The memorandum stated, in part:
I reiterate that US Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the Geneva Conventions. In addition, if you intend to use techniques B, I, O, or X [included below], you must specifically determine that military necessity requires its use and notify me in advance.
If, in your view, you require additional interrogation techniques for a particular detainee, you should provide me, via the Chairman of the Joint Chiefs of Staff, a written request describing the proposed technique, recommended safeguards, and the rationale for applying it with an identified detainee.
TAB A - INTERROGATION TECHNIQUES
[Technique] B. Incentive/Removal of Incentive: Providing a reward or removing a privilege, above and beyond those that are required by the Geneva Convention, from detainees. (Caution: Other nations that believe that detainees are entitled to POW [prisoner-of-war] protections may consider that provision and retention of religious items (e.g. the Koran) are protected under international law (see, Geneva III, Article 34). Although the provisions of the Geneva Convention are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique).
[Technique] I. Pride and Ego Down: Attacking or insulting the ego of a detainee, not beyond the limits that would apply to a POW. (Caution: Article 17 of Geneva III provides, “Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous, treatment of any kind.” Other nations that believe that detainees are entitled to POW protections may consider this technique inconsistent with the provisions of Geneva. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.)
[Technique] O. Mutt and Jeff: A team consisting of a friendly and harsh interrogator. The harsh interrogator might employ the Pride and Ego Down technique [Technique I]. (Caution: Other nations that believe that POW protections apply to detainees may view this technique as inconsistent with Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.)
[Technique] X. Isolation: Isolating the detainee from other detainees while still complying with basic standards of treatment. (Caution: The use of isolation as an interrogation technique requires detailed implementation instructions, including specific guidelines regarding the length of isolation, medical and psychological review, and approval for extensions of the length of isolation by the appropriate level in the chain of command. This technique is not known to have been generally used for interrogation purposes for longer than 30 days. Those nations that believe detainees are subject to POW protections may view use of this technique as inconsistent with the requirements of Geneva III, Article 13 which provides that POWs must be protected against acts of intimidation; Article 14 which provides that POWs are entitled to respect for their person; Article 34 which prohibits coercion and Article 126 which ensures access and basic standards of treatment. Although the provisions of Geneva are not applicable to the interrogation of unlawful combatants, consideration should be given to these views prior to application of the technique.)
TAB B - GENERAL SAFEGUARDS
Application of these interrogation techniques is subject to the following general safeguards: (i) limited to use only at strategic interrogation facilities; (ii) there is a good basis to believe that the detainee possesses critical intelligence; (iii) the detainee is medically and operationally evaluated as suitable (considering all techniques to be used in combination); (iv) interrogators are specifically trained for the technique(s); (v) a specific interrogation plan (including reasonable safeguards, limits on duration, intervals between applications, termination criteria and the presence or availability of qualified medical personnel) has been developed; (vi) there is appropriate supervision; and (vii) there is appropriate specified senior approval for use with any specific detainee (after considering the foregoing and receiving legal advice).
The purpose of all interviews and interrogations is to get the most information from a detainee with the least intrusive method, always applied in a humane and lawful manner with sufficient oversight by trained investigators or interrogators. Operating instructions must be developed based on command policies to insure uniform, careful, and safe application of any interrogations of detainees.
Interrogations must always be planned, deliberate actions that take into account numerous, often interlocking factors such as a detainee’s current and past performance in both detention and interrogation, a detainee’s emotional and physical strengths and weaknesses, an assessment of possible approaches that may work on a certain detainee in an effort to gain the trust of the detainee, strengths and weaknesses of interrogators, and augmentation by other personnel for a certain detainee based on other factors.
Interrogation approaches are designed to manipulate the detainee’s emotions and weaknesses to gain his willing cooperation. Interrogation operations are never conducted in a vacuum: they are conducted in close cooperation with the units detaining the individuals. The policies established by the detaining units that pertain to searching, silencing, and segregating also play a role in the interrogation of a detainee. Detainee interrogation involves developing a plan tailored to an individual and approved by senior interrogators. Strict adherence to policies/standard operating procedures governing the administration of interrogation techniques and oversight is essential.
It is important that interrogators be provided reasonable latitude to vary techniques depending on the detainee’s culture, strengths, weaknesses, environment, extent of training in resistance techniques as well as the urgency of obtaining information that the detainee is known to have.
While techniques are
considered individually within this analysis, it must be understood that
in practice, techniques are usually used in combination; the cumulative effect
of all techniques to be employed must be considered before any decisions are
made regarding approval for particular situations. The title of a particular technique is not always fully descriptive of a particular technique. With respect to the employment of any techniques involving physical contact, stress or that could produce physical pain or harm, a detailed explanation of that technique must be provided to the decision authority prior to any decision.
The US Detainee Treatment Act (2005) states:
Sec. 1002. Uniform Standards for the Interrogation of Persons Under the Detention of the Department of Defense.
(a) In General - No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
Sec. 1006. Training of Iraqi Forces Regarding Treatment of Detainees.
(a) Required Policies -
(1) In General - The Secretary of Defense shall ensure that policies are prescribed regarding procedures for military and civilian personnel of the Department of Defense and contractor personnel of the Department of Defense in Iraq that are intended to ensure that members of the Armed Forces, and all persons acting on behalf of the Armed Forces or within facilities of the Armed Forces, ensure that all personnel of Iraqi military forces who are trained by Department of Defense personnel and contractor personnel of the Department of Defense receive training regarding the international obligations and laws applicable to the humane detention of detainees, including protections afforded under the Geneva Conventions...
In July 2006, in response to the US Supreme Court’s ruling in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), the US Deputy Secretary of Defense issued a memorandum regarding the department’s compliance with common Article 3 of the 1949 Geneva Conventions:
The Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense [DoD] are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 and, therefore, actions by DoD personnel that comply with such issuances would comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3.
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act of 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.
(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:
(i) the conditions of confinement and interrogation practices of the program do not include:
(E) wilful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(iii) the interrogation practices are determined by the Director of the Central Intelligence Agency, based upon professional advice, to be safe for use with each detainee with whom they are used … .
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the  Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 2. Definitions. As used in this order:
(f) “Treated humanely” … refer to, and have the same meaning as, those same terms in Common Article 3 [to the 1949 Geneva Conventions].
Sec. 3. Standards and Practices for Interrogation of Individuals in the Custody or Control of the United States in Armed Conflicts.
(a) Common Article 3 Standards as a Minimum Baseline
. Consistent with the requirements of the Federal torture statute, 18 U.S.C. 2340–2340A, section 1003 of the Detainee Treatment Act of 2005, 42 U.S.C. 2000dd, the Convention Against Torture, Common Article 3, and other laws regulating the treatment and interrogation of individuals detained in any armed conflict, such persons shall in all circumstances be treated humanely … , whenever such individuals are in the custody or under the effective control of an officer, employee, or other agent of the United States Government or detained within a facility owned, operated, or controlled by a department or agency of the United States.
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 the Maelzer case
in 1946, the US Military Commission in Florence convicted the accused of having exposed prisoners of war in his custody to acts of violence, insults and public curiosity in violation of Article 2, second paragraph, of the 1929 Geneva POW Convention. The prisoners had, among other things, been forced to march through the streets of Rome in a parade emulating ancient triumphal marches.
In 2008, in the Harman case, in which the appellant appealed the finding of a military court that had convicted her of conspiracy to maltreat detainees, dereliction of duty by wilfully failing to protect detainees from abuse, and maltreatment of detainees – charges that had arisen from a series of incidents that had occurred at the US Baghdad Central Confinement Facility at Abu Ghraib, Baghdad, Iraq, in 2003 – the US Army Court of Criminal Appeals upheld the finding of the lower court and its sentence of rank reduction, forfeiture of pay and allowances, confinement for six months and a bad-conduct discharge. The Court of Appeals stated:
She [the appellant] asserts that she was not adequately trained to serve as a prison guard and was not adequately trained in the law of armed conflict. She emphasizes that her company commander testified that her unit was unprepared to perform the mission they were assigned at Abu Ghraib. In addition, given that nudity and handcuffing detainees was common in the prison, she asserts that it was not clear which acts were permissible and which ones were not.
We disagree. Appellant may not have had the ideal training, or even good training, for serving in the prison. Her unit certainly did not behave as a well-trained military police company should. But the facts and reasonable inferences from the facts establish beyond a reasonable doubt that appellant knew that her duties included protecting Iraqi detainees from the kinds of abuse, cruelty, and maltreatment alleged in the specification and in the portions of the bill of particulars of which she was found guilty.
The US Directives on the Combined Screening of Detainees in Viet Nam issued in 1967 stated: “Detainees are entitled to humane treatment in accordance with the provisions of the Geneva Conventions.”
An instruction card issued to all US troops engaged in Viet Nam directed soldiers always to treat prisoners humanely, adding: “All persons in your hands, whether suspects, civilians, or combat captives, must be protected against violence, insults, curiosity, and reprisals of any kind.”
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 mistreated and will be provided humane and safe detention.”
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 states: “It is the opinio juris
of the US 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 UN 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 at Guantanamo 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 State Department stated:
Notwithstanding the fact that the detainees at Guantanamo are unlawful enemy combatants, the Armed Forces of the United States are “treating and will continue to treat [the detainees] humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of the [Geneva Convention] … The detainees will not be subjected to physical or mental abuse or cruel treatment.” See
White House Fact Sheet, Feb. 7, 2002, at 1–2.
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’s conclusion stated:
Several US Army Soldiers have committed egregious acts and grave breaches of international law at Abu Ghraib/BCCF and Camp Bucca, Iraq. Furthermore, key senior leaders in both the 800th MP Brigade and the 205th MI Brigade failed to comply with established regulations, policies, and command directives in preventing detainee abuses at Abu Ghraib (BCCF) and at Camp Bucca during the period August 2003 to February 2004.
Approval and implementation of the recommendations of this AR 15-6 Investigation and those highlighted in previous assessments are essential to establish the conditions with the resources and personnel required to prevent future occurrences of detainee abuse.
In May 2004, the US Secretary of Defense together with other senior military and civilian defence personnel, appeared before The House Armed Services Committee, following the public revelations of detainee abuse by US service personnel at Abu Ghraib prison in Iraq. In his testimony, the Secretary of Defense stated:
[W]e moved in a very, very positive way very quickly, and we’ve got a pretty good handle on it. We, as we mobilize soldiers or deploy soldiers are putting specific emphasis on the Geneva Convention – The Hague and Geneva Conventions, the Law of Land Warfare. In our combat training centers we’re dealing specifically with the proper procedures and treatment of detainees from the point of capture all the way through the system to the point of detention.
And I can assure you this is receiving our very, very strong attention.
Following a question from a member of the Committee regarding the humane treatment of detainees, the Acting Secretary of the Army, Les Brownlee, stated:
Preliminary findings indicate that leaders and soldiers are aware of the requirement and expectation to treat detainees humanely and that it is their duty to report incidents of abuse. To date, the majority of the abuse cases indicate the underlying cause has been two-fold: an individual failure to adhere to basic standards of discipline, training and Army values; and leadership failures to provide oversight and enforce standards.
On 25 May 2004, the US Secretary of Defense directed the Naval Inspector General, Vice Admiral Albert T. Church, III, to conduct a comprehensive review of Department of Defense interrogation operations. This direction followed revelations of detainee abuse in Iraq’s Abu Ghraib prison. Admiral Church submitted his report in March 2005. Its conclusion included the following statement:
It bears emphasis that the vast majority of detainees held by the U.S. in the Global War on Terror have been treated humanely, and that the overwhelming majority of U.S. personnel have served honorably. For those few who have not, there is no single, overarching explanation. While authorized interrogation techniques have not been a causal factor in detainee abuse, we have nevertheless identified a number of missed opportunities in the policy development process. We cannot say that there would necessarily have been less detainee abuse had these opportunities been acted upon. These are opportunities, however, that should be considered in the development of future interrogation policies.
In 2005, in its second periodic report to the Committee against Torture, the United States stated that “the commitment of the United States to treat detainees humanely is clear and well documented”.
(footnote in original omitted)
In 2005, the US Department of Defense (DoD) released a report of an investigation, dated 1 April 2005 (as amended 9 June 2005), commissioned by the Commander US Southern Command (USSOUTHCOM) and conducted by Lieutenant General R.M. Schmidt and Brigadier General J.T. Furlow into FBI allegations of detainee abuse at the US Detention Facility, Joint Task Force Guantanamo Bay, Cuba. The Executive Summary of the report stated:
Detention and interrogation operations at Joint Task Force Guantanamo (JTF-GTMO) cover a three-year period and over 24,000 interrogations. This AR 15-6 [Army Regulation 15-6: Procedures for Investigating Officers and Boards of Officers, dated 30 September 1996] investigation found only three interrogation acts in violation of interrogation techniques authorized by Army Field Manual 34-52 [Intelligence Interrogation] and DoD guidance. The AR 15-6 also found that the Commander of JTF-GTMO failed to monitor the interrogation of one high value detainee in late 2002. The AR 15-6 found that the interrogation of this same high value detainee resulted in degrading and abusive treatment but did not rise to the level of being inhumane treatment. Finally, the AR 15-6 found that the communication of a threat to another high value detainee was in violation of SECDEF [US Secretary Department of Defense] guidance and the UCMJ [Uniform Code of Military Justice]. The AR 15-6 found no evidence of torture or inhumane treatment at JTF-GTMO.
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]umane treatment has, and always been, remains the standard for detainees’ care and treatment. All health care personnel, regardless of their role, have a duty to comply with the law and to uphold humane treatment of detainees and to report known or suspected violations … [H]ealth care personnel, regardless of their role, are not to supervise, direct or conduct interrogations.
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 to the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3.
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 Guantanamo Bay.
These men will be held in a high-security facility at Guantanamo. 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 Guantanamo, 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 Guantanamo. Let me give you some facts. Of the thousands of terrorists captured across the world, only about 770 have ever been sent to Guantanamo. 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. The International Committee of the Red Cross has the opportunity to meet privately with all who are held there. The facility has been visited by government officials from more than 30 countries, and delegations from international organizations, as well. After the Organization for Security and Cooperation in Europe came to visit, one of its delegation members called Guantanamo “a model prison” where people are treated better than in prisons in his own country.
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision [Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs.
In February 2008, in a statement on the US Department of Justice’s legal review of the 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.
… [T]he executive order makes clear that the program must be very narrow in scope, to include only those high-value terrorist detainees believed to possess critical knowledge of potential attack planning or the whereabouts of senior al Qaeda leadership. 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, and he must personally approve each individual plan of interrogation before it is implemented..
In August 2009, in a speech made in Washington DC on the occasion of the 60th Anniversary of the 1949 Geneva Conventions, the US White House Counsel stated:
[T]hanks to Common Article III [to the 1949 Geneva Conventions], the UN Convention Against Torture, the Constitution of the United States, the American judiciary and, most recently, the American electorate, one thing is now certain: individuals taken into custody by the United States must, as a matter of U.S. law, be treated humanely.
In November 2009, in a statement marking the 60th Anniversary of the 1949 Geneva Conventions, the legal adviser of the US Department of State stated:
As everyone here is aware, the relationship between the United States and the Geneva Conventions has been the subject of much international commentary since September 11, 2001 … Today, it is clear that individuals taken into custody by the United States must, as a matter of law, be treated humanely. The entire United States Government has worked to achieve this result, which is true to the letter and spirit of the Geneva Conventions.
In March 2010, in a speech given at the Annual Meeting of the American Society of International Law, the legal adviser of the US Department of State stated:
With respect to detention, as you know, the last Administration’s detention practices were widely criticized around the world, and as a private citizen, I was among the vocal critics of those practices. This Administration and I personally have spent much of the last year seeking to revise those practices to ensure their full compliance with domestic and international law, first, by unequivocally guaranteeing humane treatment
for all individuals in U.S. custody as a result of armed conflict.
[emphasis in original]
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 State Department’s 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. The Obama Administration abides by all applicable law in these armed conflicts, including laws respecting humane treatment [and] detention.