International Committee of the Double-Red Cross

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.



  1. Mr. Lah,For someone so well-domiciled overseas, I find your hostility to international organs to be disappointing. Yes, these bodies are flawed, but rampant unilateralism is not what is called for, methinks. I hear there’s a town in southern Utah that officially banned the UN (whatever that means). Oh yes, and it’s full of crazy people too. Hmmm. Any correlation?This is a typcial tactic of Bushies: when the heat is on, go attack some “fureign” body. I for one am happy that there is a ICRC in this world.And this legalistic approach to morality that some of you Yanks exhibit is annoying. Maybe it’s because you have this enshrined sense of a *written* right and wrong (see Constitution, US). Guantanamo justice stinks; I couldn’t care less whether it’s legal or not.


  2. Mr. Ro,I can’t help but observe that for all of your education your argument here is a non-argument. It seems to be a toothless hip-hip-hooray for internationalism. I would be interested if you would address the merits of the argument and not on your on nostalgia for big international organizations.You seem to want to categorize my distinguished colleague Mr. Lah (who is, I must confess, myself) as a “Bushie”. To this I can only reply with snorts and giggles. You slay me.I have NO aversion whatsoever to the general idea of international bodies. I am quite constitutionally (an appropriate word with many meanings) allergic to global talkshops that give voice and legitimacy to tyrants and kleptocrats while ignoring the slaughter of innocents. Let us distinguish between the general (the IDEA of the UN, which you and I and all Europeans would embrace) and the exact and ugly reality that the UN has actually become.


  3. Professor,I feel like the guy that has to tell his best mate that he is, indeed, an alcoholic. Professor, sit down. Repeat after me: I.AM.A.BUSHIE. The man and his neo-con buddies clearly sh*t gold for you, my son. You are in denial if you think otherwise. Utah Democrat my arse.And you are right, it was indeed a non-argument. Quite like my non-argument for many things (e.g. the existence of God, the basic rightness of certain morals, the destiny of the Bengals to beat the Steelers on Sunday). I readily admit that many international organisations are desperately flawed. Still, their existence feels good to me and worthy of some faint praise. Emotional clap trap, I agree.But your UN/ICRC/ICC-bashing is more than just mere gentlemanly concern. Admit it, Lah Lah. Your White House has been bashed by these people, and you’re bashing back. I calls it as I sees it.Let us not forget that the UN is inordinately controlled by the permanent SC, in which are beloved countries have seats. The Oil for Food debacle was a SC mandate, and we supported it. It’s no good putting all the blame on Kofi Annan. But it’s OK I s’pose ‘cos that smarmy Clinton and that awful Madeline Albright were in charge then, so we can blame it on the Dems.So, you can have my non-argument. I concede to yours: the ICRC has indeed allowed politics to colour its judgements. I, for one, am delighted that it has, because GitMo has to be called for what it is by someone, somehow: an offense to the great American value of freedom and justice. Bush and friends have seriously dishonoured your fine country. You take a man you suspect of a crime and you place him on trial. Basic Magna Carta stuff. If he’s guilty, crush his testicles for all I care. I am grateful that Bush appears to have kept us safe here in America; yes, this is indeed a dirty, nasty war, one that must be fought (the war against Al Qaeda, that is); but at the end of the day, the ICRC is just espousing American values — legality be damned!Oh, and the War Crimes Tribunal may be a banana court, but something about Milosevic’s trial seems good to me.A challenge: you say something positive about the UN and I will do the same for Bush II. Deal?


  4. Snort. Giggle. Let’s work on our definition of “Bushie” shall we? The best I can do with it is to argue that a Bushie would have to support Bush admin policies most of the time but at least half of the time.I don’t even go up to half. What happens is that I happen to be a Blairite interventionist on foreign policy. I believe we are right to be in Iraq. And because this has become the defining issue of the Bush administration and it is–in the broadest sense of whether or not we should be there, but not in the micro strategic questions on the ground–one of the issues where I am in agreement with the Bush admin, I end up standing in that corner. But if you were to break down the Iraq war into component parts on strategic and tactical issues and questions of framing you would again find, I disagree with the Bush admin far more than I agree with them. So, my friend, unless you have some crack-induced definition of what a “Bushie” might be, you will be forced by weight of argument to withdraw.Booyakasha.As for saying nice things about the UN–I already did. Conceptually, it’s a beautiful idea. Also, it makes me feel warm and fuzzy and nostalgic for the world that it most accurately represents, post-WW II Europe. I like that. That’s nice. France standing as a world power ahead of Japan and India… it’s got a museum kind of quality to it, it’s quaint.Also… no one at disputed whether or not it was a good thing that Slobi got served. That’s great. But once again, I provide a detailed argument (showing that there are many very good reasons–promoted by one of the stars of the interinational justice system–why a forward thinking, prudent nation-state would reject the ICJ) and you respond with an emotionalized “but it makes me feel good!” It’s an interesting microcosm of Euro-American dialogue. Euro-intellectuals love to deride Americans for their backwards resistance to things like the ICJ. And yet they never make any convincing argument for it, they only offer some phantom morality. Can you offer me something besides a phantom morality?


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