One of the recurring contentions in the global critique of the Bush administration is its alleged indifference to “international law”. My post of a few days back exposed the Mickey Mouse thinking in the argument that the US is under any obligation–moral or other–to embrace the ICC, its ersatsz legalism and its underqualified judges.
Today I’d like to focus on the the notion that the United States has violated “international law” encoded in the Geneva Conventions by holding combatants in Guantanamo Bay.
According to the GC the basic criteria of “lawful belligerency” includes: (1) subordination to a responsible command structure, (2) wearing uniforms, (3) carrying arms openly and (4) operating in acordance with the laws and customs of war. Al-Qaeda and the Taliban both fail everyone of these tests miserably. The White House reasonably concluded that detainees of either group were “unlawful” or “unprivileged” enemy combatants. They are entitled to be treated humanely but subject to prosecution in military courts and may be held without a criminal trial until the war is over.
The International Committee of the Red Cross doesn’t dig that interpretation. An excellent article in The National Interest by David Rivkin and Lee Casey (Spring, 2005) outlines the basics of the ICRC agenda and its disagreement with the US. The central issue is this: the ICRC believes that AQ and Taliban detainees should be treated as POWs under the GC, or as civilians entitled to a swift trial. It also contends, says Rivkin andCasey that “holding captured Al-Qaeda and Taliban members without trial and devising an interrogation regimen designed to ‘break their wills’–without actually subjecting them to torture–itself violates international law and is indeed ‘tantamount to torture.”
The US, obviously, rejects this contention. And under the law actually applicable to American actions, the government is correct. The ICRC is essentially demanding that the US comply with legal norms it has not approved and to which it is not bound and which do not rise to any standard of consensus international “law”. In doing so the ICRC has stepped outside its charter as an impartial interlocutor and advisr and made itself an advocate seeking the implementation of legal norms of which it approves.
Its claims are largely based on the 1977 “Protocol I Additional” to the Geneva Conventions. More accurately, they are based on the ICRC’s interpretation of that Protocol. Protocol I essentially changes the status of irregular combatants who fight under the laws of war. It recognizes their legal status and gives them the right to POW treatment. It relaxes requirements of uniforms and openly carried weapons.
At the time it was up for ratification the US opted out–a decision that was lauded by the NY Times and the Washington Post. The reasons, as framed by President Reagan, were that:
It contains provisions that would undermine humanitatrian law and endanger civilians in war….It would give special status “wars of national liberation”, an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves.
So, the US did not ratify it and it is not bound by its provisions. The ICRC does not appreciate this and it has spent the last 30 years acting as is PI is fait accompli. It is not. But if it was it would still be inapplicable to current US policy in Guatanamo. As framed by Rivkin and Casey:
Indeed, the ICRC’s interpretation of Protocol I’s norms as benefiting the men now held at Guantanamo Bay is far more than the treaty’s actual language will bear. Protocol I does privilege irregulars, but only to the extent that they are excused from the traditional requrements of uniforms and carrying their arms openly. The other critical requirements–that such men be subordinated to a responsible command structure and be part of a miliatry organization that acknowledges and complies with the laws and customs of war in its operations at least as a matter of policy–were left fully intact. Thus, neither Al-Qaeda, the Taliban, nor the foreign fighters in Iraq would qualify as lawful combatants or POWs, even under Protocol I.