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

Historically, the most common categories denied the protections of
POW status (apart from pirates and robber bands) were spies and
saboteurs operating out of uniform. The U.S. Supreme Court hastily
approved the conviction of German saboteurs by secret military
commission in 1942. Death sentences were imposed, even though the
half-hearted efforts of these saboteurs, landed by submarine on Long
Island, did no damage in the United States. No one thought it strange
that the two Germans who cooperated with investigators were spared
execution as a reward for their cooperation. By the same token,
postwar American war crimes tribunals dismissed charges against
German officers who had executed Yugoslav partisans for sabotage
efforts. It was held that because the partisans did not have clearly
marked insignia, indicating their status as lawful combatants,
killing them was not a war crime. Military courts were not willing to
endorse the notion that saboteurs and secret partisans had the same
status as lawful combatants.

The underlying bargain here rests most of all on the assumption that
an organized army can be neutralized by its surrender. Valuable
information might be gained by closely questioning surrendered
troops, but armies have been willing to forego the right to pressure
POWs into talking in order to assure respectful treatment when their
own troops are taken prisoner. The calculus always looked different
for bands of spies, saboteurs or secret agents operating behind enemy
lines, where pressing for information seemed absolutely crucial
because secrecy, more than massed formation, was the essential
precondition for the success of such enemy activity.

If the protections of the Geneva Convention are regarded as
reciprocal concessions by the "contracting parties"--the states
sponsoring the forces in conflict--then systematic violations by one
side release the other side from its obligations. The opposing side
can rightly claim to be strengthening international standards by
denying legitimacy to forces that systematically violate the laws of
war. If the convention is seen as a statement of universal human
rights standards, however, then every individual prisoner has some
claim to these protections unless it can be shown that he was
personally operating in violation of the rules.

The idea of universal human rights norms was certainly known to the
diplomats and generals who gathered in Geneva in 1949. The year
before, the United Nations General Assembly had, with much fanfare,
proclaimed a "Universal Declaration of Human Rights" premised on the
idea that the world recognized basic rights for all human beings.
Most of the governments negotiating the 1949 Geneva Conventions no
doubt regarded universal human rights as a fine idea, and wished well
to the machinery established in the UN Charter to "save succeeding
generations from the scourge of war." But they did not regard these
new projects as sufficient reason to sacrifice the more tangible
benefits of the traditional rules of war. To this day, UN human
rights norms have no means of enforcement. But the laws of war always
had some means of enforcement through the natural and logical
operation of reciprocity.

If the obligations are entirely binding, regardless of what the other
side does, the whole scheme looks quite different. A reprisal or
response then becomes as bad as the initial violation that provoked
it. By that sort of reasoning, it would always be wrong to use
terrible weapons or even threaten their use. So much, then, for
deterrence. It is a view that makes sense, if at all, only to those
who see themselves as standing entirely above or apart from the
conflict, or as answering to some authority positioned above the
actual forces in conflict. In other words, it demands the return of
the old idea of neutrality.

That is, of course, precisely where the ICRC and human rights groups
position themselves. As an official ICRC publication puts it, "the
basic principles underlying [international humanitarian]
law--humanity, impartiality and neutrality--are as valid as ever and
certainly still of the utmost relevance." That brings us to the
deepest issues in the war on terrorism.

The Lightness of Neutrals

Contemporary human rights groups demand a neutral forum for
adjudicating abuses, an international criminal court where the
decision to press charges will be left entirely to an independent
international prosecutor. Actually, it will not be left entirely to
the prosecutor, for new procedural rules allow "victims" to appeal
the decision of the prosecutor not to seek an indictment. This means
that advocacy groups like the ICRC, mobilizing on behalf of victims,
will have legal as well as political forums to press their views. As
it happens, violations of the laws of war, including mistreatment of
prisoners, are very much in the jurisdiction of the new court, so
disputes like the one over the Guantanamo detainees may one day be
pursued by a prosecutor at The Hague. The court would also have
jurisdiction over crimes of "aggression" and broadly defined "war
crimes", so American decisions to strike at terrorist bases or the
countries harboring them could also trigger indictments.

Nobody imagined such a thing in the late 1940s when the current
Geneva Conventions were negotiated. Certainly, nobody imagined that
the ICRC would play a prominent role in arraigning offenders against
the laws of war. The ICRC had never done that sort of thing before,
and its wartime record did not suggest that it had either the
inclination or the capacity to do so. During the war, the ICRC
performed with reasonable efficiency in its traditional role,
discreetly conveying inspectors' reports from prison camps to the
opposing European powers. To win the trust of both sides, it reported
abuses of prisoners to home states, but it did not trumpet its
findings to the world. And it said precisely nothing about the Nazi
extermination camps, though it had considerable information about
them. Much has been made in recent years about the failure of the
Vatican to protest the Nazi Holocaust. But the ICRC's conduct was no
better and in some ways worse. Whatever may be said about Pope Pius
XII, at least he did not voice public praise for the SS. From its
headquarters in Geneva--a much safer place than Rome--the
International Red Cross published commendations of the German Red
Cross, even when the German chapter was directed by an SS doctor who
conducted ghoulish experiments on concentration camp victims.

No doubt, the ICRC had its reasons. It did not want to compromise its
role as a discreet go-between in the monitoring of prisoner-of-war
camps. The Swiss government, with which the ICRC had always been
closely associated, was itself eager to maintain good relations with
Germany, and was fearful of being "swamped" by a "flood" of Jewish
refugees. But whatever the reasons, the ICRC did not emerge from the
war as an inspiring example of humanitarian achievement. The Geneva
Conventions acknowledge in passing the ICRC's role as a monitor, but
they do not make cooperation with it mandatory and they certainly do
not establish the ICRC as the definitive arbiter of compliance with
the conventions.

Partly because the ICRC remained cautious about its own role until
relatively recently, a new set of conflict monitors arose in the
1970s and 1980s and quickly achieved much more prominence. Amnesty
International, Human Rights Watch, and Médecins sans Frontières were
much louder and more insistent in their denunciations of abuses
because they were willing to provoke the hostility of governments.
The ICRC has tried to reclaim leadership with public denunciations of
its own in recent years, as in its very public and premature
condemnation of American practices at Guantanamo.

But the prestige of Amnesty International and Human Rights Watch owes
much to the period in which they arose. During the late 1960s and
early 1970s, much Western opinion inclined to the view that the
United States was acting the role of a bully in Southeast Asia.
During the 1980s, much Western opinion inclined to the same view
regarding American involvement in the nasty guerrilla wars of Central
America. In the 1990s, the collapse of communism in Europe seemed to
leave much scope for reform and improvement, but no enemy deeply
threatened the United States or the West as a whole. In such a world
it was easy for human rights groups to maintain a lofty detachment
and retain their prestige as neutral moral arbiters.

For most Americans, September 11 changed all that. President Bush
speaks of terrorist networks and the regimes that sponsor or harbor
them as "evil." Countries that are not "with us" are to be regarded
as "against us." There is not much patience for neutrality in these
formulations. But that is almost beside the point. In truth, those
who planned the attacks on the World Trade Center and those who
nurtured them have no interest in "humanitarian law." Islamist
radicals do not think of war as a conflict between states from which
ordinary humanity should, as much as possible, be spared. They think
of war as an all-out contest between peoples, so that American
civilians (or, in the counterpart struggle in the Middle East,
Israeli civilians) are no less legitimate targets than uniformed
soldiers. Neither age nor sex nor disability makes any difference.
The aim is simply to punish a whole society for its sins. The
preconditions for reciprocal restraint are wholly absent.

Essay Types: Essay