An interview with Doctors without Borders lawyer, Françoise Bouchet-Saulnier

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Le Monde

What is the impact on humanitarian law of new forms of conflict in which terrorism is involved?

The “war against terrorism” is marked by the refusal to recognize the prisoner or combatant status of the majority of opposition forces.

However, there is an absolute symmetry between combatant and civilian status: if one disappears, the other does also. The non-recognition of the enemy’s status leads to his demonization and treatment outside of any lawful condition. This Manichean apprehension of reality is an absolute retreat from the law. We are witnessing an ascent of abuses of power by way of an imperceptible gradation that aims to disqualify combatants and terrorists. In Iraq, families are arrested when they can’t find the person they want- expanding the notion of “combatant” to the civilians who are related to them. In Palestine or in Chechnya, the entire civilian population is suspected of being or of supporting combatants, and so finds itself refused any presumption of innocence.

Does fighting against terrorism imply a special law?

The supposedly new character of the conflicts allows a rare bonus: since they’re new, the law doesn’t apply any more! However, these insurrections and guerilla wars are not new phenomena. The Cold War was nothing else: a big conflict, more or less frozen, with guerillas supported by foreign powers all over the planet. It’s the scope of terrorism that poses a problem. Fighting it implies that one has to work within a framework of limited use of force to avoid falling into the same terror oneself. Instead, on the contrary, we seem to have returned to the principle that the end justifies the means. We deny a whole philosophy of the law of war that says that whatever the objectives, the means must be limited. How is one to respond to the United States except to say that the US is the one tipping the world into terror because it is the one getting rid of the rules that allowed terror to be defined and resisted? To quote Nietzsche, “the one who fights the monster has to take care not to become the monster himself.”

The term “torture” covers forbidden acts causing physical or mental suffering with the intention of obtaining intelligence or a confession, directly or from a third party. Is this definition valid?

The temptation to find the flaws in this definition is obvious. Piles of well-paid and badly-intentioned lawyers are at work on that job. For example, they consider that the “level of pain” could be a criterion. These legal quibbles have allowed the Israelis to develop the concept of “moderate physical pressure”; their Supreme Court refused to swallow this euphemism applied to torture. When you get in front of a judge, all these legal cosmetics explode. That’s why the American administration tries to avoid judges. American military tribunals will certainly reiterate the prohibition against torture in Iraq and will describe those acts that have been committed as torture.

Do universal values exist?

It’s not values that are relative, but the situations that lead to sacrificing them. Someone gets the idea that it won’t cost anything and could provide a big return and then sacrifices his values in the name of exceptional situations. That’s a universal temptation. After every conflict, in universal fashion also, people realize that the sacrifice of principles weakened military effectiveness and destroyed societies much more durably than any use of arms. If torture were effective at obtaining vital strategic intelligence, Algeria would still be French...

Terrorists also use torture against the population: ethnic cleansing, targeting civilians, etc. Its legal definition changes then, however, and it becomes a crime against humanity. “Cruel, inhuman, and degrading treatment” is a war crime.

During a recent trial, French General Schmitt, former head of the armed services, declared his solidarity “with comrades who, following political decisions, had to pursue harsh interrogations to save human life.” What do you think of this statement?

It’s exemplary: the military won’t acknowledge anything so long as the politicians haven’t accepted responsibility for the illegality of the orders they’ve given. By declaring his “solidarity” General Schmitt accepts the goal the politicians have given and legitimizes the objectives. The end justifies the means. In Iraq, in the conflict between Pentagon boss, Donald Rumsfeld, and Colin Powell, it’s clear that the latter has acted at least as much in his role of Secretary of State as in the role of General, and not for humanist reasons. For the foundation of law is not humanism, but intimate knowledge of the powers of destruction at work in conflicts and of the mechanisms for channeling them. Generals know that respect for the rules is also necessary for military effectiveness. It’s the inverse of the civilian power’s postulate according to which no war was ever won by respecting the law. The military know better than politicians that war is not a political response to the world’s problems.

What difficulties are there with applying humanitarian law?

First of all, it must be applied in good faith. At the beginning of the war in Afghanistan and in Iraq, the American government’s legal counselors’ commentaries were staggering in bad faith, incompetence, or worse, propaganda. They ridiculed the Geneva Conventions, asserting, like Deputy Secretary of State Richard Armitage, that they were “obsolete”. They never mention that these conventions were amended in 1977 to take into account new specifics: decolonization wars, guerilla and terrorist movements. In this propaganda war, it’s the military, as opposed to civilian officials, who, paradoxically, find themselves on the side of respect for the law. They, in fact, feel very concerned: in the absence of rules for the treatment of the enemy, they risk undergoing the same fate. People always forget to mention that an army’s power is its discipline. When an army is made to commit gratuitous acts unjustified by law and military necessity, its cohesion is destroyed, as was the case with the American army in Vietnam. France experienced the trauma caused by the Algerian War.

What are the rules concerning population displacement?

Ethnic cleansing, emptying a territory for conquest, are war crimes. Temporary displacements, for military reasons or to protect civilians, are regulated. Humanitarian law gives the right of return to residents and, during their displacement, shelter in satisfactory conditions. When a block of houses in Gaza is leveled, the objective is not to have people return when the houses are reconstructed, so it is illegal.

How do you react to the rules of detention set by the Americans in Guantánamo and elsewhere?

The law during peacetime protects against arbitrary detention by limiting its reasons, whereas the law of wartime put more emphasis on detention conditions that are narrowly defined. The problem of illegal combatants is therefore a false legal debate: you are either a combatant or a civilian since the 1997 Additional Geneva Convention Protocol reintegrated those who commit an act of belligerence into the status of prisoners of war. When the Untied States asserts that certain detainees are not covered by the conventions, it is no longer a matter of law, but of legal propaganda. According to their argument, since terrorists don’t respect human rights, these do not apply to them. When that argument didn’t hold up, they said they never ratified the first protocol: therefore it would not apply to this type of prisoner. However the definition of a combatant used by the American military justice code exactly mirrors the 1977 definition! And the 3rd convention clarifies, among other things, that in a case of doubt about the status of the author of an act of belligerence, he benefits from the status set forth in the convention until his case is clarified by a tribunal. This should have forced the Americans to admit that the status of the prisoners at Guantánamo had to be decided by a competent military tribunal, not by the Pentagon or the president. This prison is an interesting legal innovation: there are already offshore financial paradises, now they have created offshore legal paradises!

How should the world react?

The Swiss government has made an appeal to the American government for the application of human rights law. This is an unprecedented act on the part of a neutral country and a first victory. The United States has lost the illusion of lawfulness: it’s one thing to violate the law while admitting to the violation, and another to do so while affirming that one is respecting the law. It is also a propaganda battle because, on the legal side, there is no doubt. The American declarations were very clear: it was not a matter of indicting the prisoners, but of obtaining information. As long as the war on terrorism continues, they must retain a reservoir of people capable of giving information on past and future events. Otherwise, they could have perfectly legally indicted, judged, and even executed prisoners of war. But then, they can only indict them before the same tribunals that judge American soldiers.

How do you assess the use of private contractors by the U.S. army?

The United States say that Al-Qaeda is a non-governmental group, mercenaries. But the US makes large use of what it reproaches in others. It does not make a clear distinction between civilians and combatants; the whole population is taken hostage. More than half its operations are conducted by private contractors, who are not always American citizens. The question of a private company’s liability for acts committed by its contractors on a mission with the United States military in a foreign country is an unsolvable legal puzzle.

The construct of a space in Guantánamo devoid of all legal responsibility was created to protect the authorities from all criminal responsibility by the creation of shell companies. I don’t see a conceptual difference between the status of individuals or organized groups not dependant on a country and the use of private sub-contractors where we don’t know the terms of the contract. An irresponsible and legally opaque system has been created.