Applying Geneva

From Holden:

Looks like someone at the Pentagon actually read the Hamdan decision.

The Pentagon has decided in a major policy shift that all detainees held in US military custody around the world are entitled to protections under the Geneva Conventions, according to two people familiar with the move.

The FT has learned that Gordon England, deputy defence secretary, sent a memo to senior defence officials and military officers last Friday, telling them that Common Article 3 of the Geneva Conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees held in US military custody.

This reverses the policy outlined by President George W. Bush in 2002 when he decided members of al-Qaeda and the Taliban did not qualify for Geneva protections because the war on terrorism had ushered in a “new paradigm…[that] requires new thinking in the law of war”.

The policy U-turn comes on the heels of the Supreme Court ruling last month that the military commissions Mr Bush created to try prisoners at Guantanamo Bay contravened both US law and the Geneva Conventions.


In the wake of the Supreme Court decision, legal experts had disagreed about whether the ruling meant that Geneva protections should be given to only those detainees brought before the military commissions, or to all detainees held at Guantanamo Bay and other US military detention facilities around the world.

That question now appears moot in light of the Pentagon move. Congress could conceivably still rewrite US law to eliminate the Geneva protections, but such a move would generate huge international criticism.


While Mr Bush declined to apply the Geneva conventions to Taliban and al-Qaeda captives, he ordered in 2002 that “detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva”. But his critics argued that the wording of his order provided large loopholes that could be exploited to abuse prisoners.

While the Pentagon order applies to all detainees held by the US military, it does not apply to prisoners held outside the military detention system, such as Khaled Sheikh Mohammed, the alleged mastermind of the September 11 attacks who is being held in a secret Central Intelligence Agency prison. But the Pentagon move could increase pressure on the administration to re-examine CIA detention policies and practices.