torture. I won’t, as others have done, comment on the kind of language that is used to make more anodyne these practices.
What has been the legal strategy to permit some of these things to happen, to whatever extent they may or may not have happened? Well, first of all, there has been a look at the international law of armed conflict, particularly the Geneva Conventions relative to the treatment of persons in armed conflict. The relevant conventions being the Geneva Convention III on the treatment of prisoners of war and the Geneva Convention IV on the treatment of civilians.
In an international armed conflict, say the U.S. lawyers, the Geneva Conventions don’t apply to the people they’ve detained, not to Al Qaeda and not to the Taliban. They don’t apply to Al Qaeda because Al Qaeda is not associated with a contracting state, and only people connected with armies as connected with a contracting state party can be protected by the Geneva Convention on prisoners of war, and only civilians protected by a contracting state can be protected under the Fourth Geneva Convention. Since Al Qaeda is not a contracting party, anybody having anything to do with Al Qaeda is automatically not protected insofar as the Geneva Conventions protect people in international armed conflict—the Taliban too, for that matter, but they are history, and I won’t spend time on them, given the limited amount of time I have.
What about common Article 3 of the Geneva Conventions, which applies in non-international armed conflict? There is no criterion of having to be a party to any particular conflict, there is no particular threshold. Nobody in the hands of a party to the internal conflict can at any time or at any place whatsoever be subjected to torture or to inhuman or cruel treatment. There is no ambiguity. Torture and inhuman treatment, we know, are war crimes. Well, that doesn’t apply because it is not a non-international conflict. It is an international conflict that they are dealing with—global war on terror. The situation is not a non-international conflict, and so the minimal protection offered by common Article 3 doesn’t apply. If it is not an international conflict, therefore, the greater protections offered by the rest of the Geneva conventions don’t apply either.
It was generally thought, and I think it is still arguably the case, that, in fact, common Article 3 has to be seen as reflecting the basic norm within the convention as a whole. But we don’t have to go that route. I don’t want to take you down a complicated legal argument, because international law doesn’t have to rely just on treaties. Maybe I should just add a little gloss on something Baroness O’Neill said this morning. It isn’t necessarily just a treaty that gives you international law. There is also such as a thing as customary or general international law, which gives you a so-called source of international law. And there can be not the beginnings of doubt that the prohibition of torture and cruel and inhuman treatment in international humanitarian law is a rule of customary humanitarian law, and it is a rule that applies to anybody in the hands of a party. It is a position that operational law handbooks of the United States themselves have taken in the past.
So, does that resolve the issue? No, it doesn’t, at least not for the United States. It may, for us, as the international community. The Department of Defense legal memorandum has a heading at one point: Customary International/Views of Other Nations. There it takes on board