After Guantanamo

After Guantanamo

Mini Teaser: Those who would recast the laws of war as international human rights norms are distorting sound precedent, and making big trouble.

by Author(s): Jeremy Rabkin

The same logic of reciprocity and restraint pertains today, but do
circumstances allow that logic to function? It is certainly in
America's interest to adhere to these conventions when others also do
so. But where does that leave us in a war with terrorist
organizations and states that nurture them? Can humanitarian laws of
war function with enemies who disdain the very idea of humanitarian

Practical Matters

The official position of the U.S. government is that prisoners at
Guantanamo are not "prisoners of war" in the sense of the Geneva
Convention, and they are not therefore entitled to claim the
protection of every provision in the convention. The International
Committee of the Red Cross and leading human rights groups,
however--and, as of April 28, the British government, as well--insist
that they are prisoners of war or should at least have the
presumption of such status, with denials of such status to be
determined on the basis of individual trials. Since the U.S.
government insists that it will treat the prisoners humanely--and the
ICRC has confirmed that it is doing so--this dispute may seem a
pointless quibble.

But it is not pointless, and it is more than a quibble. The
designation of being a prisoner of war carries a certain sense of
respectability. A prisoner of war is not a criminal, because
soldiering is not inherently criminal. We may not want to say the
same about terrorist forces, and there is clear precedent for this
attitude. The Western Allies treated soldiers of the Wehrmacht as men
who were simply doing their duty, while SS troops were treated as
members of what was designated a "criminal organization"--and
thousands were sentenced to postwar imprisonment on that basis or
detained much longer than ordinary German POWs.

Clearly, then, apart from moral and symbolic issues, serious
practical matters are at stake in the current war. Among the most
important are the implications for the interrogation of prisoners.

As everyone recalls from old war movies, prisoners of war are
required only to give "name, rank and serial number"--or, as the 1949
Convention adds (as an alternate means of identification), "date of
birth." Human Rights Watch insists that this limitation does not
prevent prisoners from volunteering more information, nor prohibit
prison officials from seeking more. But the convention expressly
stipulates that prisoners of war may not be "threatened, insulted or
exposed to any unpleasant or disadvantageous treatment of any kind."
The convention goes into considerable detail in trying to exclude
unnecessarily "unpleasant or disadvantageous treatment." Prisoners of
war, for example, are to have access to "canteens" where they "may
procure foodstuffs, soap and tobacco and ordinary articles in daily
use." They must be allowed to retain or receive money to buy such
things, even if the money has to be provided by the detaining power
as an advance on regular pay. Prisoners must also be allowed their
own cooking facilities to make use of little extras they may acquire.

As it happens, no such facilities exist in Guantanamo, and this is
objectively helpful. It makes the job of interrogators easier if such
comforts are not provided as of right but can instead be used as
bargaining chips to induce cooperation.

Similarly, the convention envisions that prisoners will be housed
together and be allowed to participate as a group in recreational,
cultural and religious activities. Prisoners who want to lead prayer
services with fellow prisoners are guaranteed the right to do so. At
Guantanamo, prisoners have been isolated in individual cells and the
U.S. Army supplies its own Muslim chaplains for individual prayer

The problem is that when a prisoner is being questioned, it is useful
for interrogators to suggest that others have already talked. It may
make a big difference (both for psychological and practical reasons)
for the prisoner to know whether this is so; there is a good reason
that social scientists often invoke the "prisoner's dilemma" as a
model for decision-making under conditions of uncertainty. As a
matter of security, too, it is much harder to plot an uprising or a
mass escape if you cannot communicate easily with fellow prisoners.
In the makeshift cells at Guantanamo, it has not been possible to
keep prisoners from communicating with each other by calling out from
their open-air enclosures. But more permanent facilities may make
fuller isolation feasible. It thus remains a serious issue whether
respect for the Geneva Convention should be understood as a legal
obstacle to such practices on the part of the prison administration.

Perhaps most importantly, the Geneva Convention requires that
prisoners be "released and repatriated without delay after the
cessation of active hostilities." It will not be easy to say when
"active hostilities" have ceased where the opposing "power" is a
non-state terrorist organization. Nor will it be a simple matter to
say when it may be safe to return members of an international
terrorist network to roam free again. The convention does allow for
individual prisoners to be tried and punished for war crimes they may
have committed prior to capture, such as direct participation in
terror attacks on civilians. But it is very hard to assemble
information about the past activities of individual prisoners
captured with a terrorist force. It will be especially hard if, as
the ICRC and human rights groups insist, prisoners are presumptively
"lawful combatants" until individually proven otherwise, so that each
may retreat to name, rank and serial number.

All such practical considerations are dismissed by the ICRC and most
human rights groups, however. They argue that if the United States
says it is making "war", then the prisoners it takes should be
considered, at least presumptively, prisoners of war until an
individual can be shown by a competent judicial tribunal to be a
terrorist. It should not matter, they say, whether Al-Qaeda or
Taliban forces adhere to all or even any of the requirements of the
Geneva Conventions so long as they are organized participants in what
the United States itself regards as a war. To pick and choose among
the protections we offer will "provide cover to other governments to
ignore human rights standards", as Amnesty International argues, and,
as Human Rights Watch warns, "put soldiers around the world at risk."

From Contract to Folly

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 enemies seeking
special advantage by exempting themselves from those laws.

Essay Types: Essay