Wednesday, November 18, 2015

After Guantanamo: The War Over the Geneva Convention

Re-posted by Nicholas Stix
November 11, 2003

By Jeremy Rabkin

British tabloids blasted the story around the world: The Americans had removed Al-Qaeda and Taliban prisoners to a secret torture camp in Cuba! Photographs showed prisoners gagged and shackled, and crammed into cells exposed to the elements. Amnesty International demanded immediate access to the scene of these abuses. Mary Robinson, the UN Commissioner for Human Rights, chimed in, along with other prominent human rights advocates and a supporting chorus of left-wing politicians in Europe.

Unwilling to be left behind, the International Committee of the Red Cross (ICRC), self-declared "guardian" of the Geneva Convention on the treatment of war prisoners, weighed in with its own expressions of outrage.

The furor died down in less than a week as the facts became known. The prisoners, some of whom had been involved in a violent prison revolt in Afghanistan, had been restrained in transit but not within their prison cells in Guantanamo. Officials from the ICRC who visited the site soon confirmed that prisoners were receiving adequate food and medical attention, and that their makeshift prison offered no less protection from the elements than the hastily constructed facilities set up for their American guards.

It was left only to wrangle about legal details. The ICRC, along with Amnesty International and Human Rights Watch, insisted that the prisoners deserved the full protections accorded prisoners of war under the Geneva Conventions. After some initial verbal clutter, the Bush Administration maintained that terrorists were not technically prisoners of war, but that they would nevertheless be treated by the standards set down in the Geneva Conventions whenever possible. This did not satisfy the ICRC. "There are divergent views between the United States and the ICRC," officials in Geneva reported, vowing to "pursue dialogue" on the legal issues even as they acknowledged that there was no humanitarian crisis at Guantanamo.

The whole episode could be chalked up to typical European carping at American "unilateralism", enabled, if not created, by irresponsible slash-and-burn journalism. But the fracas says something important about the changing character of international law. This episode should warn the wise that ambitious new versions of international law are likely to become a continuing source of mischief in the world, and much trouble to the United States.

Whence the Laws of War?

The immediate source of law in the Guantanamo dispute is the third Geneva Convention of 1949, which concerns the treatment of war prisoners. Three other conventions were launched at the same time (on the treatment of wounded and sick combatants in the field; on the treatment of wounded, sick and shipwrecked combatants captured in naval war; and on the protection of civilians in occupied territory). The provisions in these four treaties were for the most part clarifications and elaborations of the Geneva Conventions of 1929, which in turn sought to elaborate and clarify standards agreed at The Hague Peace Conferences of 1906 and 1899. The underlying impulse for all of this is usually traced to the Geneva Convention of 1864, the first treaty to recognize a specially protected role for Red Cross medical services in wartime. (The International Red Cross had been established in Geneva only shortly beforehand and was instrumental in convening the 1864 conference.)


The dispute over the Guantanamo prisoners, then, is a dispute about treaty law-but treaty law with a history. It is worth our while to briefly review tha history, for only in its light can we see how inventive the ICRC's current interpretation of the law really is.
<P>       That history indeed goes back further than the 19th-century conferences that gave formal recognition to restraints in the conduct of war. Yet restraint had not always been accepted practice. In medieval Europe, the sacking of towns and fortresses was regarded as a necessary reward for soldiers after the rigors of a siege, and a useful warning to the next target to surrender short of a siege. As late as the 16th century, Spanish theologians claimed to be applying the principles of St. Thomas Aquinas in justifying massacre and rape as an acceptable form of punishment for those who took the wrong side in a just war.
<P>       But unrestrained war of this kind seemed safely in the past by the mid-19th century. Wars had long since come to be the undertakings of professional armies, funded and directed by well-organized states that were generally eager to minimize injury to private property and ongoing commerce. It was widely accepted that states should respect certain limits and proprieties in war, especially in their treatment of enemy soldiers and civilians, well before the treaty conferences in Geneva and at The Hague.
<P>       The prevailing conception of war was so gentlemanly that both Hague Conventions acknowledged the customary practice of releasing enemy officers on "parole"-that is, their word as gentlemen not to escape or return to fighting, but be neutralized by their capture.
<P>       Indeed, by the 19th century, neutrality itself had achieved a considerable degree of moral prestige, as neutral powers were conceived by most European statesmen and jurists as standing aloof from the political intrigues and calculations of petty marginal advantage in the foreign ministries of warring states. The neutral power could thus be identified with the higher claims of humanity at large. Geneva and The Hague were thus thought to be especially appropriate sites for conferences on the laws of war precisely because Switzerland ad Holland were neutral states.
<P>       The same conferences that polished up humanitarian standards for captives also sought to lay down broader limitations on the conduct of war-for example, against the use of submarines to sink merchant ships even of the enemy power. Restrictions were also negotiated on the size of artillery shells and the types of rifle bullets permissible in war. Admiral Alfred Thayer Mahan, one of the American delegates to the 1899 Hague conference, cautioned (regarding a ban on dropping bombs from aerial balloons) that improved weapons, by "localizing at important points the destruction of life" might well "diminish the [overall] evils of war and [so] support the humanitarian considerations we have in view." But he was ignored by Europeans eager to experiment with what we would now call arms control.
<P>       Most of these experiments in mutual restraint were promptly abandoned amid the pressures of the First World War. The Germans ignored restrictions on submarine warfare in their determination to starve Britain of aid and supplies. The Allies imposed their own naval blockade to starve Germany and Austria of supplies-including food for civilians. World War II was still worse. Disregarding interwar agreements that sought to revive limits on submarine warfare, the American and British navies adopted a policy of unrestricted submarine warfare against Japanese merchant shipping.
<P>       Disregarding agreements on the protection of civilians, British and American bombers devastated the cities of Germany and Japan from the air, with little pretense of focusing on "military" as opposed to "civilian" targets.
<P>       Hundreds of thousands of civilians died, even before the culmination of these efforts at Hiroshima and Nagasaki. Such ferocity could be defended as lawful reprisal for enemy aggression or for treaty violations by the enemy, releasing the Allies from their own commitments. But the truth is that Western governments were not much concerned about legal niceties in the midst of all-out war.
<P>       The hallowed idea of neutrality just barely survived World War II. In a struggle that was seen so clearly as a battle of good against evil, nobody on the winning side expressed admiration for states that had remained neutral. For several years the Soviets objected to admitting Ireland to the United Nations; members were required to be "peace-loving" and the Irish refusal to join the war against Hitler showed, said the Soviets, that Ireland was not reliably in favor of peace. Traditionally neutral states that had been overrun without serious resistance-Holland, Norway and Denmark-were chastened by the experience and readily joined the Atlantic Alliance after the war. Even Switzerland was condemned for trading with the Nazis rather than admired for holding itself aloof.
<P>       And yet some laws of war did survive, notably those covering the treatment of prisoners of war. Neither Stalin's Soviet Union nor the Japanese warlords professed to be bound by the 1929 Geneva Convention and neither expected any mercy from their enemies. But Germany remained a signatory and did honor its obligations toward fellow signatories-though not out of any sense of reverence for international legality. American and British (including British Commonwealth) prisoners were, with some exceptions, reasonably well treated by the Germans, even as their non-"Anglo" prisoners-and all prisoners of the Japanese-were horribly abused (or simply murdered). The reason for the restraint in the case of the Anglo-American war with Germany was a sense of reciprocal obligation and thus mutual deterrence. General Alfred Jodl testified at Nuremberg that Hitler had demanded the execution of captured Allied airmen in 1943 in retaliation for the devastating incendiary bombing of German cities. But Hitler's military staff evaded and finally buried this directive, fearing that it would trigger retaliation in kind against German prisoners in Allied hands.
<P>       Thanks to this history, it did not seem altogether hopeless to restore the Geneva Conventions after World War II. Indeed, t seemed only prudent-and so, by 1949, it was done. The 1949 conventions were not honored by the North Koreans or the Chinese in the Korean War, nor by the Hanoi government in the Vietnam conflict. But even in these wars, communist authorities did not massacre American prisoners en masse. If they held them as bargaining chips, rather than as vessels of sacred humanity, communist governments still saw mutual restraint as being in their interest, much as the Nazis had recognized during World War II.
<P>         The same logic of reciprocity and restraint pertains today, but do circumstances allow that logic to function? It is certainly in America's interest to adhere to these conventions when others also do so. But where does that leave us in a war with terrorist organizations and states that nurture them? Can humanitarian laws of war function with enemies who disdain the very idea of humanitarian restraint?
<P>       <font size="+2"> Practical Matters</font>
<P>        The official position of the U.S. government is that prisoners at Guantanamo are not "prisoners of war" in the sense of the Geneva Convention, and they are not therefore entitled to claim the protection of every provision in the convention. The International Committee of the Red Cross and leading human rights groups, however-and, as of April 28, the British government, as well-insist that they are prisoners of war or should at least have the presumption of such status, with denials of such status to be determined on the basis of individual trials. Since the U.S. government insists that it will treat the prisoners humanely-and the ICRC has confirmed that it is doing so-this dispute may seem a pointless quibble.
<P>         But it is not pointless, and it is more than a quibble. The designation of being a prisoner of war carries a certain sense of respectability. A prisoner of war is not a criminal, because soldiering is not inherently criminal. We may not want to say the same about terrorist forces, and there is clear precedent for this attitude. The Western Allies treated soldiers of the Wehrmacht as men wh were simply doing their duty, while SS troops were treated as members of what was designated a "criminal organization"-and thousands were sentenced to postwar imprisonment on that basis or detained much longer than ordinary German POWs.
<P>         Clearly, then, apart from moral and symbolic issues, serious practical matters are at stake in the current war. Among the most important are the implications for the interrogation of prisoners.
<P>         As everyone recalls from old war movies, prisoners of war are required only to give "name, rank and serial number"-or, as the 1949 Convention adds (as an alternate means of identification), "date of birth." Human Rights Watch insists that this limitation does not prevent prisoners from volunteering more information, nor prohibit prison officials from seeking more. But the convention expressly stipulates that prisoners of war may not be "threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind." The convention goes into considerable detail in trying to exclude unnecessarily "unpleasant or disadvantageous treatment." Prisoners of war, for example, are to have access to "canteens" where they "may procure foodstuffs, soap and tobacco and ordinary articles in daily use." They must be allowed to retain or receive money to buy such things, even if the money has to be provided by the detaining power as an advance on regular pay. Prisoners must also be allowed their own cooking facilities to make use of little extras they may acquire.
<P>         As it happens, no such facilities exist in Guantanamo, and this is objectively helpful. It makes the job of interrogators easier if such comforts are not provided as of right but can instead be used as bargaining chips to induce cooperation.
<P>         Similarly, the convention envisions that prisoners will be housed together and be allowed to participate as a group in recreational, cultural and religious activities. Prisoners who want to lead prayer services with fellow prisoners are guaranteed the right to do so. At Guantnamo, prisoners have been isolated in individual cells and the U.S. Army supplies its own Muslim chaplains for individual prayer sessions.
<P>         The problem is that when a prisoner is being questioned, it is useful for interrogators to suggest that others have already talked. It may make a big difference (both for psychological and practical reasons) for the prisoner to know whether this is so; there is a good reason that social scientists often invoke the "prisoner's dilemma" as a model for decision-making under conditions of uncertainty. As a matter of security, too, it is much harder to plot an uprising or a mass escape if you cannot communicate easily with fellow prisoners. In the makeshift cells at Guantanamo, it has not been possible to keep prisoners from communicating with each other by calling out from their open-air enclosures. But more permanent facilities may make fuller isolation feasible. It thus remains a serious issue whether respect for the Geneva Convention should be understood as a legal obstacle to such practices on the part of the prison administration.
<P>         Perhaps most importantly, the Geneva Convention requires that prisoners be "released and repatriated without delay after the cessation of active hostilities." It will not be easy to say when "active hostilities" have ceased where the opposing "power" is a non-state terrorist organization. Nor will it be a simple matter to say when it may be safe to return members of an international terrorist network to roam free again. The convention does allow for individual prisoners to be tried and punished for war crimes they may have committed prior to capture, such as direct participation in terror attacks on civilians. But it is very hard to assemble information about the past activities of individual prisoners captured with a terrorist force. It will be especially hard if, as the ICRC and human rights groups insist, prisoners are presumptively "lawful combatants" until individually proven otherwise, so that each may retreat to name, rank and serial number.
<P>         All such practical considerations are dismissed by the ICRC and most human rights groups, however. They argue that if the United States says it is making "war", then the prisoners it takes should be considered, at least presumptively, prisoners of war until an individual can be shown by a competent judicial tribunal to be a terrorist. It should not matter, they say, whether Al-Qaeda or Taliban forces adhere to all or even any of the requirements of the Geneva Conventions so long as they are organized participants in what the United States itself regards as a war. To pick and choose among the protections we offer will "provide cover to other governments to ignore human rights standards", as Amnesty International argues, and, as Human Rights Watch warns, "put soldiers around the world at risk."
<P>       [End of Part I.]

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