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BUSH AND THE GENEVA CONVENTION:
BEGGING THE QUESTION

Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

In a striking example of double-talk, President George W. Bush has announced that the United States will apply the Geneva Convention to the captured Taliban fighters in Guantanamo, but won稚 classify them as prisoners of war. This is like being half pregnant. The Geneva Convention Relative to the Treatment of Prisoners of War spells out how prisoners of war must be treated. Bush痴 statement that he will apply the Geneva Convention to the Taliban prisoners is tantamount to a declaration that they are POWs.

Bush says his decision will result in 渡o change in the treatment of the captives, because they池e already generally being treated consistent with the Geneva Convention. Bush痴 non-decision is admittedly calculated to remind other rogue nations who might capture U.S. fighters that our soldiers must be granted the protections of the Geneva rules.

The Geneva Convention Relative to the Treatment of Prisoners of War requires that the status of captured persons be determined by a 田ompetent tribunal should 殿ny doubt arise about whether they are prisoners of war. Meanwhile, they must be afforded the protections of the Geneva Convention.

Despite widespread doubt around the world, the Pentagon says there is no doubt at all about the status of the Guantanamo captives But White House spokesman Ari Fleisher痴 statement that the drafters of the Geneva Convention didn稚 contemplate international terrorists belies the Pentagon痴 insistence that there is no doubt about their status. The United States can稚 have it both ways.

The Pentagon has taken it upon itself to classify the captives as 砥nlawful combatants in order to deny them the rights spelled out in the Geneva Convention. These rights include humane treatment and the right not to be interrogated or coerced into providing information. The U.S. government is admittedly interrogating the captives. And from its steadfast refusal to consider them POWs, it is surely using coercion to get them to talk. Moreover, keeping human beings in small outdoor cages does not qualify as humane treatment.

Even if a competent tribunal were to decide that some of the captives are not POWs, then our government is still duty bound to follow two other treaties we致e ratified - the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the International Covenant on Civil and Political Rights. The Torture Convention forbids the use of physical or mental coercion for the purpose of getting information, and the ICCPR prohibits compulsion to get someone to confess guilt. Keeping human beings in cages constitutes inhuman and degrading treatment, which is proscribed by both of these treaties.

George W. Bush and his administration have demonstrated a consistent unwillingness to follow our international treaty obligations. By refusing to ratify the Kyoto Protocol and disavowing the Anti-Ballistic Missile Treaty, our government has sent a strong message to other countries that we have no respect for our legal obligations. The treaties we have ratified are not simply abstract international principles. Under the Constitution, they are part of our domestic law and bind our government to respect them.

In an unprecedented move, the United States was voted off the United Nations Commission on Human Rights last year. It should come as no surprise that other countries are unimpressed with our human rights hypocrisy - demanding that foreign nations uphold human rights while flaunting our own human rights responsibilities. President Bush ended his recent State of the Union address with these words: 展e choose freedom and the dignity of every life. The captives at Guantanamo are human beings, who may or may not have committed crimes. The United States government must adhere to its treaty obligations; it must also take the high road and treat all human beings with dignity and respect.


Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego, where she teaches international human rights law. She is on the national executive committee of the National Lawyers Guild.

February 8, 2002

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CONTRIBUTING EDITOR

JURIST Contributing Editor Marjorie Cohn is an associate professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is editor of the National Lawyers Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the University of Santa Clara School of Law.