Part II: After Guantanamo: The War Over the Geneva Convention

<font size="4" face="Georgia, Times New Roman, Times, serif">Re-posted by Nicholas Stix

<EM>A Different Drummer</EM><font color="#999999">November 11, 2003</font></font>

 

[Previously: <a href=http://nicholasstixuncensored.blogspot.com/2015/11/after-guantanamo-war-over-geneva_18.html>Part I</a>.]

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       By Jeremy Rabkin

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<font size="+2">Pt. II: From Contract to Folly</font></font>

 

 The underlying premise of such arguments is that the "humanitarian laws of war" are now part of general human rights law. In the mid-1990s, the United Nations published the Geneva Conventions in the same volume with the Covenant on Civil and Political Rights, the Convention Against Torture, and some ninety other general human rights treaties adopted since World War II. No one says that these other protections can be suspended just because some signatories fail to uphold them. The ICRC insists, therefore, that the requirements of the Geneva Convention are "unilaterally binding."

 

  This sounds sensible enough, but it makes the text and history of the conventions unintelligible. Each of the four conventions is proclaimed in the name of "the High Contracting Parties" - that is, the states that subscribe -and the provisions are expressly limited to "parties" on the understanding that the conventions are "contracts." So if "one of the Powers" engaged in a war is not a party to the convention, others in the war who are "parties" to the convention "remain bound by it in their mutual relations" - but not bound to it in relation to the non-party unless "the latter accepts and applies the provisions thereof."

 

  This is the original idea of a treaty. A treaty, as The Federalist (No. 64) explained in 1788, "is only another name for a bargain." At the heart of the Geneva Conventions is this bargain: fight according to these professional rules and we will treat you with professional respect.

 

  The main rules for defining combatant status go back to The Hague Convention of 1899. They are not based on ancient ideas of rank and courtesy. Rather, the rules were drawn up at conferences at which military officers were not merely present as observers, but constantly at the elbow of the diplomats and lawyers as full participants for what they could provide by way of practical advice. The rules thus rest pre-eminently on practical considerations. The rules allow even "militias" or "other volunteer corps" to qualify for POW status-if they belong to a "party to the conflict"-even if not part of regular armies. But to qualify as a lawful combatant, an individual fighter must be "commanded by a person responsible for his subordinates." One obvious reason for this is that the opposing army, if it is going to treat a captive with all the courtesies of a prisoner of war, must be sure that the captive will behave like a prisoner rather than an infiltrator ready to attack his guards the moment they turn their backs. Surrender is reliable only when those claiming to give up actually answer to the command of a superior who has ordered them to lay down their arms.

 

  So, too, a "lawful combatant" must "carry arms openly" and also carry a "fixed distinctive sign recognizable at a distance" (that is, a uniform or insignia). An opposing army cannot respect the claims of non-combatants if it cannot discern who they are. The other criteria are encompassed in the final requirement that all lawful combatants must "fulfill the conditions" of "conducting their operations in accordance with the laws and customs of war." Armies are not required to respect the "laws and customs of war" against eneies seeking special advantage by exempting themselves from those laws.

 

  Historically, the most common categories denied the protections of POW status (apart from pirates and robber bands) were spies and saboteurs operating out of uniform. The U.S. Supreme Court hastily approved the conviction of German saboteurs by secret military commission in 1942. Death sentences were imposed, even though the half-hearted efforts of these saboteurs, landed by submarine on Long Island, did no damage in the United States. No one thought it strange that the two Germans who cooperated with investigators were spared execution as a reward for their cooperation. By the same token, postwar American war crimes tribunals dismissed charges against German officers who had executed Yugoslav partisans for sabotage efforts. It was held that because the partisans did not have clearly marked insignia, indicating their status as lawful combatants, killing them was not a war crime. Military courts were not willing to endorse the notion that saboteurs and secret partisans had the same status as lawful combatants.

 

  The underlying bargain here rests most of all on the assumption that an organized army can be neutralized by its surrender. Valuable information might be gained by closely questioning surrendered troops, but armies have been willing to forego the right to pressure POWs into talking in order to assure respectful treatment when their own troops are taken prisoner. The calculus always looked different for bands of spies, saboteurs or secret agents operating behind enemy lines, where pressing for information seemed absolutely crucial because secrecy, more than massed formation, was the essential precondition for the success of such enemy activity.

 

  If the protections of the Geneva Convention are regarded as reciprocal concessions by the "contracting parties"-the states sponsoring the forces in conflict-then systematic violations by one side release the other side from its obligations. The opposing side can rightly claim to be strengthning international standards by denying legitimacy to forces that systematically violate the laws of war. If the convention is seen as a statement of universal human rights standards, however, then every individual prisoner has some claim to these protections unless it can be shown that he was personally operating in violation of the rules.

 

  The idea of universal human rights norms was certainly known to the diplomats and generals who gathered in Geneva in 1949. The year before, the United Nations General Assembly had, with much fanfare, proclaimed a "Universal Declaration of Human Rights" premised on the idea that the world recognized basic rights for all human beings. Most of the governments negotiating the 1949 Geneva Conventions no doubt regarded universal human rights as a fine idea, and wished well to the machinery established in the UN Charter to "save succeeding generations from the scourge of war." But they did not regard these new projects as sufficient reason to sacrifice the more tangible benefits of the traditional rules of war. To this day, UN human rights norms have no means of enforcement. But the laws of war always had some means of enforcement through the natural and logical operation of reciprocity.

 

  If the obligations are entirely binding, regardless of what the other side does, the whole scheme looks quite different. A reprisal or response then becomes as bad as the initial violation that provoked it. By that sort of reasoning, it would always be wrong to use terrible weapons or even threaten their use. So much, then, for deterrence. It is a view that makes sense, if at all, only to those who see themselves as standing entirely above or apart from the conflict, or as answering to some authority positioned above the actual forces in conflict. In other words, it demands the return of the old idea of neutrality.

 

  That is, of course, precisely where the ICRC and human rights groups position themselves. As an official ICRC publication puts it, "the basic principles underlying [international humanitarian] law-humanity, impartiality and neutrality-are as valid as ever and certainly still of the utmost relevance." That brings us to the deepest issues n the war on terrorism.

 

 

  <font size="+2">The Lightness of Neutrals</font>

 

 Contemporary human rights groups demand a neutral forum for adjudicating abuses, an international criminal court where the decision to press charges will be left entirely to an independent international prosecutor. Actually, it will not be left entirely to the prosecutor, for new procedural rules allow "victims" to appeal the decision of the prosecutor not to seek an indictment. This means that advocacy groups like the ICRC, mobilizing on behalf of victims, will have legal as well as political forums to press their views. As it happens, violations of the laws of war, including mistreatment of prisoners, are very much in the jurisdiction of the new court, so disputes like the one over the Guantanamo detainees may one day be pursued by a prosecutor at The Hague. The court would also have jurisdiction over crimes of "aggression" and broadly defined "war crimes", so American decisions to strike at terrorist bases or the countries harboring them could also trigger indictments.

 

  Nobody imagined such a thing in the late 1940s when the current Geneva Conventions were negotiated. Certainly, nobody imagined that the ICRC would play a prominent role in arraigning offenders against the laws of war. The ICRC had never done that sort of thing before, and its wartime record did not suggest that it had either the inclination or the capacity to do so.

 

  During the war, the ICRC performed with reasonable efficiency in its traditional role, discreetly conveying inspectors' reports from prison camps to the opposing European powers. To win the trust of both sides, it reported abuses of prisoners to home states, but it did not trumpet its findings to the world. And it said precisely nothing about the Nazi extermination camps, though it had considerable information about them. Much has been made in recent years about the failure of the Vatican to protest the Nazi Holocaust. But the ICRC's conduct was no better and in some ways worse. Whatever may be said about Pope Pius XII, a least he did not voice public praise for the SS. From its headquarters in Geneva-a much safer place than Rome-the International Red Cross published commendations of the German Red Cross, even when the German chapter was directed by an SS doctor who conducted ghoulish experiments on concentration camp victims.

 

  No doubt, the ICRC had its reasons. It did not want to compromise its role as a discreet go-between in the monitoring of prisoner-of-war camps. The Swiss government, with which the ICRC had always been closely associated, was itself eager to maintain good relations with Germany, and was fearful of being "swamped" by a "flood" of Jewish refugees. But whatever the reasons, the ICRC did not emerge from the war as inspiring example of humanitarian achievement. The Geneva Conventions acknowledge in passing the ICRC's role as a monitor, but they do not make cooperation with it mandatory and they certainly do not establish the ICRC as the definitive arbiter of compliance with the conventions.

 

  Partly because the ICRC remained cautious about its own role until relatively recently, a new set of conflict monitors arose in the 1970s and 1980s and quickly achieved much more prominence. Amnesty International, Human Rights Watch, and MZ<caron>decins sans Frontires were much louder and more insistent in their denunciations of abuses because they were willing to provoke the hostility of governments. The ICRC has tried to reclaim leadership with public denunciations of its own in recent years, as in its very public and premature condemnation of American practices at Guantanamo.

 

</caron>  But the prestige of Amnesty International and Human Rights Watch owes much to the period in which they arose. During the late 1960s and early 1970s, much Western opinion inclined to the view that the United States was acting the role of a bully in Southeast Asia. During the 1980s, much Western opinion inclined to the same view regarding American involvement in the nasty guerrilla wars of Central America. In the 1990s, the collapse of communsm in Europe seemed to leave much scope for reform and improvement, but no enemy deeply threatened the United States or the West as a whole. In such a world it was easy for human rights groups to maintain a lofty detachment and retain their prestige as neutral moral arbiters.

 

  For most Americans, September 11 changed all that. President Bush speaks of terrorist networks and the regimes that sponsor or harbor them as "evil." Countries that are not "with us" are to be regarded as "against us." There is not much patience for neutrality in these formulations. But that is almost beside the point. In truth, those who planned the attacks on the World Trade Center and those who nurtured them have no interest in "humanitarian law." Islamist radicals do not think of war as a conflict between states from which ordinary humanity should, as much as possible, be spared. They think of war as an all-out contest between peoples, so that American civilians (or, in the counterpart struggle in the Middle East, Israeli civilians) are no less legitimate targets than uniformed soldiers. Neither age nor sex nor disability makes any difference. The aim is simply to punish a whole society for its sins. The preconditions for reciprocal restraint are wholly absent.

 

  The United States must not sink to the level of its adversaries, of course. Regardless of whether our restraint is reciprocated, the United States will need to observe some restraints for the sake of its own self-respect. Nobody, for example, suggests that the prisoners at Guantanamo should simply be executed without trial. But in a war against barbarism, it is hard to operate at all times within the gentlemanly code of the Victorian peace conferences that codified the modern law of war. In World War II, when the United States conceived itself at war with total barbarism, American bombers reigned merciless destruction on the cities of Germany and Japan. Michael Walzer argued decades later that this tactic was morally indefensible, and a serious case can be made for his claim - though a strong case can also be made for the answering claim that, in the final analysis, American bombing (including the use of atomic bombs on Japan) hastened the enemy's surrender and so saved lives overall. There is room for legitimate debate about the restraints that should be observed even in a war with a very dangerous and unrestrained enemy. But imagine how Americans would have reacted during World War II if "neutral" advocates of humanitarian restraint had set themselves up as official arbiters of American war policy. In fact, during the Battle of Britain, the ICRC did offer to monitor civilian damage inflicted by British and German bombers. Churchill rejected any such neutral monitoring role:

 

  It would simply result in a Committee under German influence or fear, reporting at the very best that it was six of one and half-a-dozen of the other. It is even very likely they would report that we had committed the major breaches. Anyhow, we do not want these people thrusting themselves in, as even if Germany offered to stop the bombing now, we should not consent to it. Bombing of military objectives, increasingly widely interpreted, seems at present our main road home.

 

  Today's ICRC would deny that it is neutral in quite the way it was during the war against Nazi Germany. The ICRC and other advocacy groups were certainly quick to denounce the bombing of the World Trade Center last fall. But they are also eager to maintain credibility with Islamic opinion and with the larger trend of leftist opinion that instinctively sides with "oppressed people" and assumes Western wrongdoing in every conflict with non-Western peoples. So, for example, both Amnesty International and Human Rights Watch insist that "international law" requires that all Palestinians be assured the right to return to the places where their grandparents or great-grandparents may have lived in what is now Israel-a demand that even governments in Europe, which are very sympathetic to Palestinian claims, do not make. The ICRC has for decades allowed Islamic medical services to affiliate as "Red Crescent" rather than "Red Cross" services but refuses to acknowledge Israel's "Red Star of David" service because it lacks an authorized insignia. Meanwhile, during the recent fighting on the West Bank, the ICRC repeatedly condemned Israel for interfering with Palestinian Red Crescent ambulances - before finally warning the Palestinians not to use these vehicles to sneak weapons and fighters past Israeli checkpoints as they have continually done. Indeed, the ICRC is so receptive to Islamist opinion that last fall a staff officer in Geneva circulated within the organization a report that the attack on the World Trade Center had probably been organized by Israeli intelligence because Jews working at the WTC had stayed home from work on that day.

 

  But the political inclination of individuals in these organizations is not the point. In a war on shadowy terror networks, human rights advocates simply cannot provide even-handed monitoring on both sides. One of the attractions of terror as a strategic weapon is that actual attacks involve very small groups whose support structure can be disguised: states that sponsor or cooperate with these networks can deny their involvement. Human rights groups do not have intelligence services that allow them to shed light on these connections. But they can publicize what they regard as American abuses, because the United States is much more open about most of its operations. Similarly, advocacy groups can hope to affect American opinion, while their influence on dictatorial states like Iraq is effectively nil.

 

  What is true for the monitoring activities of such groups is even more true for the International Criminal Court. Having received strong support from European governments, the 1998 treaty for the Court has now received sufficient ratifications to take effect. It will start operations in July. The Court will not be able to apprehend any terrorist or anyone else on its own, and terrorists willobviously find it much easier to hide than travelling American (or Israeli) officials. Moreover, the moral onus of an indictment will surely have more political weight-to say the least-against democratic states. After all, would Saddam Hussein be more dismayed by an ICC indictment than by a Security Council condemnation? Would Al-Qaeda leaders care in the least?

 

  Another problem is that the Court can only deal with those proven guilty of precise crimes. What if a leader of a terrorist operation is acquitted of the precise charges before the court because concrete evidence is insufficient for legal standards of proof? Will the terrorist then be released? Will his comrades and followers also be released on the same ground? It will not be easy to disarm terror networks if the detention of their operatives can only be continued when a judge in The Hague finds them guilty of precise crimes. But, like it or not, the ICC is now a fact, and it is likely to reinforce trends in European opinion that complicate American policy. Among other things, the existence of the ICC will strengthen the notion that there really is a higher law of humanity, binding on everyone, and that supposedly unbiased, neutral judges have the moral authority to enforce this law.

 

  Meanwhile, the active role of advocacy groups is also a fact. In western Europe in particular, criticism of American policy from Amnesty International and the ICRC immediately won an attentive hearing. The United States must expect to be criticized. It has reason to cooperate with the ICRC, as it has in Guantanamo, to dispel slanders against actual American policy.

 

  But the United States also needs to remind Europeans that wars cannot always be fought by gentlemanly rules-not when the enemy disdains all civilized restraint. Europeans may need reminding on this point because, the British excepted, most of them did not do much fighting in the last great war against barbarism-or did their fighting on the side of barbarism-and now regard actual war as something done only by other, less ennobled people. Contemporary Europe has reverted in many ways to the moral complacency characteristic of neutral Holland before each of the world wars.

 

  Apart from Britain and Turkey, European states are unlikely to be serious military allies for the United States. But to retain a place in the community of civilized states, European nations still need to remember those very important security obligations that they still can satisfy. Most of those directly involved in the September 11 attacks spent much time planning, consulting and training for their missions in European cities. And European governments remain reluctant to undertake arrests and investigations on the scale required to stop future terrorists from refitting and regrouping in Europe. Their devotion to unilateral and decontextualized standards of human rights has made Europe a haven for those who care least of all for such rights.

 

  Yes, constitutional states must respect certain limits. But as Justice Robert Jackson famously put it, a "constitutional bill of rights" cannot be interpreted as "a suicide pact." He wrote that only a few years after his return from service as chief U.S. prosecutor at the Nuremberg war crimes trials, which perhaps helped to clarify his perspective on what a constitutional state cannot do and what it must do. Yes, the United States owes "a decent respect to the opinions of mankind", as the American Declaration of Independence puts it. But the U.S. government remains responsible to its own people when deciding how to defend them. That is also in the Declaration of Independence.

 

  We should do everything we can to encourage European cooperation in the struggle against terrorism. But we cannot delegate our own decisions about national defense to prosecutors in The Hague or moral monitors in Geneva any more than we would give final word on these matters to the spiritual admonitions of the Pope in Rome. The dispute about our detention policies in Guantanamo is a harbinger of serious emerging differences with our European friends. It is important to clarify the moral and legal grounds of the American position in that dispute. It is unlikely to be the last time in this war when we will have to assert our right to an independent policy.

 

 

 <i>Originally published in The National Interest, Summer, 2002.</i></font>