CIAO DATE: 08/04

Law Watch: U.S. Responsibility for Violations of the Geneva Convention at Abu Ghraib Prison

Steven C. Welsh

Center for Defense Information

April 2004

As scrutiny over the criminal atrocities at Abu Ghraib Prison intensifies and prosecutions and reforms get underway, one of the many questions that continue to be wrestled with is that of responsibility. Both the Geneva Convention relative to the Treatment of Prisoners of War (hereinafter GC–POW) and the Geneva Convention relative to the Protection of Civilian Persons in Time of War (hereinafter “GC–Civ”) hold that — in addition to particular individuals being held responsible for wrongdoing — the United States itself bears responsibility for violations of the conventions’ mandates.

National Responsibility

GC–POW declares:

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

(GC–POW Article 12)

Similarly, GC-Civ provides that:

The Party to the conflict in whose hands protected persons may be is responsible for the treatment accorded to them by its agents, irrespective of any personal responsibility.

(GC–Civ Article 29)

Mandate for Public Education

In fact, the Geneva Conventions call not only for militaries to be educated in its provisions, but also for its principles and requirements to be disseminated as widely as possible among the general population:

The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to all their armed forces and to the entire population. . . .

(GC–POW Article 127)

Broader Responsibility and Public Education

Regarding Abu Ghraib there are, of course, the questions of criminal culpability, and how far up the chain of command it is imposed, as well as questions of command responsibility and accountability for problems that resulted, as U.S. Secretary of Defense Donald Rumsfeld acknowledged, "on my watch." At the same time, under the Geneva Convention it is the United States as a nation which must confront its responsibility for the actions of the men and women representing it in Abu Ghraib prison.

Beyond the sheer inhumanity of the atrocities, with respect to the Geneva Conventions, there also has been on the part of the perpetrators and their command structure, an apparent ignorance, a lack of basic knowledge, of the Geneva Conventions and related U.S. military regulations. Given the explicit requirements of the Geneva Convention to instill its principles in essentially all military personnel, as well as the general population of the United States, one might be led to ask just how well the United States has honored that mandate.

Has the U.S. military included adequate and thorough instruction in the Geneva Conventions as part its general military training? Perhaps even more importantly, has the United States complied with the directive to educate the general population in the same subjects? By definition, of course, full–time soldiers, reservists, and guardsmen are drawn from that general population, but at the same time the public education requirement of the Geneva Convention implies not simply a knowledge of technical detail in a treaty, but what was and must be a global aspiration to develop an ethic of justice and a culture of humanitarian treatment starting at the grass roots and infused throughout society and throughout the culture and spirit of the military.

If the American educational system, and American government, have fallen short with respect to public education, it may well fall to entities such as non–governmental organizations (NGOs) to take up the role of public education. But leadership and command responsibility for instilling respect for the Geneva Conventions, and international law generally, rightly lie first with elected leaders and their appointees. At recent congressional hearings, one legislator commented that in the aftermath of the atrocities, a step in the right direction might be to tear down Abu Ghraib prison. Another important step, one required by the Geneva Conventions themselves, is to build up appreciation for their principles, through public education and cultivating a culture of respect for humanitarian law.