62 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights tion policy dated 7 February 2002 humane treatment appeared to be seen as a policy option, not a matter of law.128 Government representatives, with whom the Panel met, categorically denied the existence of any policy condoning torture or cruel, inhuman or degrading treatment. This categorical denial is, however, undermined both by the various governmental legal memoranda authorising the use of “coercive interrogation” techniques,129 and the fact that the authorities have argued that reservations attached to US ratification of the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture) should be interpreted to mean that the US has no treaty obligation with respect to the cruel, inhuman or degrading treatment of foreign nationals held in US custody outside of US territory.130 This interpretation of international legal obligations is rejected by the UN Committee against Torture.131 The US sought to bolster its arguments that detainees fell outside the prohibition on torture by arguing that Common Article 3 of the Geneva Conventions did not apply to “unlawful enemy combatants”. The Supreme Court ruled, however, that a Guantánamo detainee captured in Afghanistan in 2001 was entitled to Common Article 3’s fundamental guarantees.132 Common Article 3 provides, inter alia, that persons captured in an armed conflict not of an international character who do not take part, or no longer take an active part, in hostilities shall be protected 128 The Directive regarding “Humane treatment of al-Qaeda and Taliban Detainees”, issued by President Bush in February 2002, determined that prisoners would not qualify for rights under the Geneva Conventions. It noted: “Of course, our values as a Nation […] call for us to treat detainees humanely, including those that are not legally entitled to such treatment…As a matter of policy, the United States Armed Forces shall continue to treat detainees humanely and, to the extent appropriate and consistent with principles of military necessity, in a manner consistent with the principles of Geneva.” See Memorandum from President to Vice President, et al., 7 February 2002, reprinted in Karen Greenberg and Joshua Dratel (eds), The Torture Papers: The Road to Abu Ghraib, Cambridge University Press, Cambridge, 2005, p. 134. See also, Report of the Senate Armed Services Committee Inquiry Into the Treatment of detainees in US Custody, 12 December 2008. The report states in Conclusion 13 that the Secretary of Defense’s authorisation of aggressive interrogation techniques for use at Guantánamo Bay was a direct cause of detainee abuse there, and that his approval of most of the techniques influenced and contributed to the use of abusive techniques in Afghanistan and Iraq. Equally, Conclusion 19 states that the abuse of detainees at Abu Ghraib in late 2003 was not simply the result of a few soldiers acting on their own. Abusive interrogation techniques appeared in Iraq only after they had been approved for use in Afghanistan and at Guantánamo Bay. The authorisation of aggressive interrogation techniques and subsequent interrogation policies and plans approved by senior military and civilian officials conveyed the message that physical pressure and degradation were appropriate treatment for detainees in US military custody. 129 See the summary of the EJP United States Hearing with reference to submissions on interrogation techniques and the impact of torture and cruel, inhuman or degrading treatment, including psychological torture, on its victims. 130 See, for example, responses of Alberto Gonzales, at the time the nominee to be US Attorney General, to the questions of Senator Richard Durbin at the Senate Judiciary Committee’s hearings on his nomination, New York Times, “Transcript: Senate Judiciary Committee Confirmation Hearing,” 6 January 2005. 131 UN Committee against Torture, Conclusions and Recommendations: United States of America, UN Doc. CAT/C/USA/CO/2, 18 May 2006, para. 14. 132 US Supreme Court, Hamdan v. Rumsfeld, 548 US 557 (2006), paras. 65-68.