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
Inter-national 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 that history, for only in its light can we see how
inventive the ICRC's current interpretation of the law really is.

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.

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 captive enemy soldiers and civilians, well before the treaty
conferences in Geneva and at The Hague. 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.

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 and Holland were neutral states.

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.

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. 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. 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.

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.

And yet some laws of war did survive, notably those covering the
treatment of prisoners. 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.

Thanks to this history, it did not seem altogether hopeless to
restore the Geneva Conventions after World War II. Indeed, it 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.