When rules go out the window and near-torture is self-defence

Al-Qaeda fights outside the Geneva Conventions and so is not protected by them, writes Ted Lapkin.

To borrow from Humphrey Bogart in Casablanca, the International Committee of the Red Cross is like any other human rights group, only more so.

For all its public image of impartiality, the Red Cross can play hardball politics with the best of them when it sees fit.

The leaked Red Cross report that accuses the United States of maltreating al-Qaeda and Taliban detainees must be read with a critical eye. According to The New York Times, the Red Cross complained that prisoners at Guantanamo Bay were subjected to 'solitary confinement, temperature extremes, use of forced positions'.

While certainly unpleasant, do such practices really meet the legal definition of torture? It seems that even the Red Cross has its doubts, hence its use of the term 'tantamount to torture' in its leaked report.

The United Nations Convention against Torture defines torture rather narrowly, describing it as the intentional infliction of 'severe pain or suffering, whether physical or mental' for political or military reasons. It is questionable whether measures cited in the leaked document would meet the 'severe pain or suffering' standard.
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It is true that article 16 of the convention requires that states which are party to it 'shall undertake to prevent' lesser acts 'of cruel, inhuman or degrading treatment'. But international legal language is precise. An obligation to 'undertake to prevent' is not the same as an absolute prohibition.

While lesser categories of coercion should not be routine, they should be available to intelligence authorities in case of a classic 'ticking bomb' scenario. If inflicting mild discomfort on a captured al-Qaeda operative could prevent a mass-casualty terrorist attack, would that be a greater offence against morality than allowing the slaughter of innocents to proceed?

The Geneva Convention on Prisoners of War goes well beyond the convention against torture to impose a blanket prohibition on any sort of pressure during questioning. In fact, the Geneva Convention imposes such severe limitations on interrogators that it would outlaw routine investigative procedures used every day by Australian police.

But that point is really academic, because the text of the conventions makes them inapplicable to the conflict with al-Qaeda. Human rights advocacy groups may not like it, but the letter of international law is not always consistent with their political agendas.

These are not simply hypothetical dilemmas that are the stuff of law school classrooms or philosophy seminars. We live in a time when these are real-world questions with real-world consequences. A case in point: last July, when the Chicago Tribune reported that 'recent information from Guantanamo has derailed plans for attacks during the Athens Olympics next month and possibly forestalled at least a dozen attacks elsewhere'.

The laws of war essentially propose a contract to combatants: if you observe these rules of civilised warfare, then you will be treated in a civilised manner. The conditional nature of legitimate combatant status is reflected in the text of the four Geneva Conventions of 1949. A common article two of those conventions states that parties to the treaty are under no legal obligation to apply their terms to non-parties who do not themselves abide by the law of armed conflict.

The men detained at Guantanamo were captured on the battlefield while fighting for organisations that systematically violated the most basic tenets of the law of war. Captured al-Qaeda fighters were drawn from the ranks of an organisation that sees the deliberate destruction of women, children and the elderly as a legitimate tactic. From flying hijacked airliners into office buildings to bombing commuter trains in Madrid, Osama bin Laden's minions have committed every war crime on the books.

The Taliban were also serial transgressors against the law of war. At a press conference in early 2002, the US Secretary of Defence, Donald Rumsfeld, explained why Washington declined to recognise Taliban fighters as legal combatants: 'The Taliban did not wear distinctive signs, insignias, symbols or uniforms ... To the contrary, far from seeking to distinguish themselves from the civilian population of Afghanistan, they sought to blend in with civilian non-combatants, hiding in mosques and populated areas. They [were] not organised in military units, as such, with identifiable chains of command; indeed, al-Qaeda forces made up portions of their forces.'

The Guantanamo Bay detainees are illegal combatants whose actions placed them beyond the pale of international law. To afford them the privileges and protections of the Geneva Conventions, despite their crimes, would provide reward where retribution is warranted.

If the task of preventing the next September 11 requires that al-Qaeda captives at Guantanamo Bay be denied their full eight hours of slumber, I certainly won't lose any sleep over it.