I’ve recently commented on the Geneva Conventions. My feeling is that the entire debate over applying them to detainees in Afghanistan (and many in Iraq) is as ill-informed (well, on my opponents’ side anyway) as that over whether or not Bush “stole” the 2000 election. This more or less suggests that, with each situation, the debate–the seeking-out of rectitude–is a fool’s errand. Rather, that there even is a debate suggests the need for reform in both situations. I’m no big fan of the Electoral College (sorry Wyoming, Rhode Island, etc., I know it augments your power, but…), and I find the Geneva Conventions as they stand to be hopelessly irrelevant to current conflicts.
Alan Dershowitz agrees. I’m inclined to quote a lot of it, but, to me, this is the heart of the need for reform:
The terrorist leaders – who do not wear military uniforms – deliberately hide among noncombatants. They have also used ambulances, women pretending to be sick or pregnant, and even children as carriers of lethal explosives.
By employing these tactics, terrorists put the democracies to difficult choices: Either allow those who plan and coordinate terrorist attacks to escape justice and continue their victimization of civilians, or attack them in their enclaves, thereby risking death or injury to the civilians they are using as human shields.
Disagree with the characterizations if you must, but there can be little doubt that terrorists/un-uniformed militias (which might be a more neutral characterization of these guys) do hide among civilian populations, store munitions in civilian facilities, and launch attacks from amongst civilians. I don’t care if this is the only avenue by which they level the playing field–it’s wrong. It should be condemned, and the blame should be formally codified as falling on their shoulders.
Dershowitz’s formal proposals, are entirely legal and allowable now. I’m sure he’d agree, but he’s absolutely correct to see the need and advantage of codification of the rights and responsibilities of combatants in modern combats. There’s plenty of room for debate as to where the line would be drawn with his proposals that I simply don’t have the time to go into during my lunch break. In response to the wrong-headed, misguided, and simply disproportionally unfair criticism of US responses to clear violations of the laws of war, I think it is high time to make some changes to international law.
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Nathan Hamm – author of 2973 posts on Registan.net.
Nathan is the Founding Editor and Publisher of Registan.net, which he launched in 2003. He was a Peace Corps Volunteer in Uzbekistan 2000-2001 and received his MA in Central Asian Studies from the University of Washington in 2007. Since 2007, he has worked full-time as an analyst, consulting with private and government clients on Central Asian affairs, specializing in how socio-cultural and political factors shape risks and opportunities and how organizations can adjust their strategic and operational plans to account for these variables. Nathan is currently seeking research, analysis, and consulting opportunities. He can be contacted via Twitter or email.
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{ 6 comments }
In response to the wrong-headed, misguided, and simply disproportionally unfair criticism of US responses to clear violations of the laws of war, I think it is high time to make some changes to international law.
it would be better if you were more specific which criticism you are talking about.
(and, to the extent you’re talking about iraq, the problem there is that the bush administration has stated that the geneva convention applies to that theater. so even if you don’t think it should, the bush administration can rightly be criticized if they don’t live up to the standards that they set for themselves)
it would be better if you were more specific which criticism you are talking about.
You’re right. I was pressed for time, so I seriously compressed (I hate making drafts of posts for some reason).
So, here are a number of the arguments I’m talking about:
Kos has a few: 1, 2, and 3. (But, hey, from the assertion that Uzbekistan is awash in oil, I can tell facts aren’t taken too seriously there).
Here’s one that fudges the issue so poorly that, well, insert your own comparison to a children’s art class.
The theme running through those arguments is much more “Bush evil!” than a concern for the rights of prisoners. I’m critical of Human Rights Watch (only because I think they are incredibly selective in who they criticize), but they raise valid issues and actually refer to the legal document in question.
People treat this issue like coverage by Geneva determines whether or not a young reservist from West Virginia is going to work over the prisoners. Not at all.
This old article hits it right on the head. The Bush Administration’s concern with Geneva is over the issue of interrogations. POWs can’t be interrogated, “illegal combatants” are grayer. A Taliban soldier or Al Qaeda operative doesn’t fit the categories of Geneva (as it currently stands) very well at all. Because this isn’t exactly the kind of law that gets a lot of time being tested in court, God only knows where a judge would draw those lines. And, because legal systems the world over tend to differ, I think it’s worth our time to consider updating Geneva again (like in 1899, 1906, and after WWII) to take into account modern combat and define the bounds.
As Geneva stands now, Russia has a (weak) argument that using artillery on a rooftop sniper position in Grozny is permissible (happened a lot). Dershowitz is right, the principle of proportionality and the guilt of that sniper needs to be spelled out. Right now, Geneva is failing miserably to protect civilians like it’s supposed to, and much of this is because un-uniformed militias and terrorists are not at all legally accountable for hiding among civilians (I don’t think they’d be deterred, but the law would not be on their side at all and this is of much value in the debates in the West).
Why we decided to apply Geneva across the board in Iraq, I can’t say. I’d guess politics, but it makes little sense to me.
Why we decided to apply Geneva across the board in Iraq, I can’t say. I’d guess politics, but it makes little sense to me.
2 reasons, one legal one political
1. iraq and the u.s. are both parties to the geneva conventions, so the usual argument about why the taliban and/or al-qaeda did not fall under the convention simply didn’t work when it came to iraq
2. early in the war, iraq captured several american pows (jessica lynch et. al.) and the administration demanded they be accorded the protection of the geneva convention. also early in the war, the bush administration accused iraqi forces of violating the convention by fighting without their uniform and filming prisoners. once they made these statements, politically they could not say the geneva convention applies only to our pows but not yours.
as for the examples you cited, they don’t seem all that egregious to me. in my opinion, the administration’s legal position with regards to the people captured in afghanistan is pretty flimsy. the traditional understanding is that if a person is not a combatant under the geneva convention, they are a criminal. the bush administration didn’t want to give them the rights of criminals, so it created a new catagory “unlawful combatants” which never existed before and really has no support in any existing treaty or law
perhaps you’re right that new times require a kind of geneva conventions. as you pointed out, they have been overhauled periodically before. but there are some differences between that and what the bush administration is doing. in the past each time the geneva convention was overhauled it was to increase its protections afforded to individuals. this time the u.s. wants to decrease its protections.
also, the procedural route for changing the rules is either by negotiating with the international community, or introducting legislation to amend american policy in enforcing the law. the administration unfortunately has expressed no interest in either legitimate route to change the existing rules for treatment of prisoners (and in my opinion they really are the only legitimate routes if we want to stand for the rule of law).
As I’m not nearly as “up” on Geneva’s applications/non-applications in Iraq, do you, by any chance, know if it’s being applied to the un-uniformed “insurgents” placing IEDs, etc?
the administration’s legal position with regards to the people captured in afghanistan is pretty flimsy. the traditional understanding is that if a person is not a combatant under the geneva convention, they are a criminal. the bush administration didn’t want to give them the rights of criminals, so it created a new catagory “unlawful combatants” which never existed before and really has no support in any existing treaty or law
I think this speaks directly to the need for a new category. They’re not quite either criminals or soldiers. They certainly fail the standard in Art. 4 (2)(b), but meet other ones. I’m also troubled by the implication of full Geneva protection for those whose stated aim is to carry forth their struggle through egregious violations of the laws of war. I certainly think that interrogating someone like Khalid Sheikh Mohammed should be permissible. Taliban footsoldiers (many of whom are now known to have been picked up as a result of false accusations from neighbors with a grudge), I’m not so sure about.
but there are some differences between that and what the bush administration is doing. in the past each time the geneva convention was overhauled it was to increase its protections afforded to individuals. this time the u.s. wants to decrease its protections.
I’m not so sure I’d agree with their aim being entirely to protect the rights of individuals. A lot of the aim in early versions was to “civilize” combat, and many of the post-WWII changes seek to protect civilians. When one entire party of the conflict violates Art. 4 (2)(b) by dressing like, hiding amongst, and storing weaponry with civilians, Geneva has a gaping hole (I can’t remember if there’s another document that deals with this. For some reason I think there is, but I can’t recall which one).
I think you’re 100% correct on the last point, but I can see their point. One of the weaknesses of my argument is that it would have little legal impact, especially if pursued through new treaties, over the next decade. It would be nice to bring the issue to the fore to debate. And really, I think that’s the key. I feel like there’s not a whole lot of honest debate going on over the issue. Where is the line drawn? Who knows? It seems that a lot of the left treats this like an open-and-shut case of “Bush broke the law” and the right seems way too focused on our short term security needs.
I’d be much more satisfied with an honest debate that acknowledges that there is actually a legal argument for denying POW status and protections to some. The problem is that, now, it can pretty much only be done arbitrarily because there are no guidelines for classifying the in-between combatants.
What I’m seeing is a lot of accusations concerning the Geneva Conventions (the links I put up are examples) that totally ignores the documents and their intent.
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