Admittedly, neither North Korea nor North Vietnam granted the ICRC access to their prisons. However, the ICRC did not, as a result, undertake anything like the persistent public campaign against those governments that it has launched against the United States with respect to Guantanamo Bay. Similarly, during the Gulf War, ICRC officials in Baghdad failed to protect coalition POWs held by Saddam, merely assisting in their repatriation once he was defeated--even though there were a dozen ICRC delegates in Baghdad during the war.

Thus, when the American Red Cross sought to defend the ICRC, its claims that "[t]he ICRC visits detainees of every nationality, including American service members" referred far more to an increasingly distant past than to the present. The ICRC's assertions that it has treated the United States like other countries and has "gone public" with its complaints only because no action was taken should also be taken with a grain of salt. The ICRC's record of publicly criticizing governments for failing, in its view, to meet applicable international humanitarian standards is mixed at best, suggesting a marked tendency to attack democracies rather than dictatorial regimes.

Take the ICRC's 2001 Annual Report's section on Saddam Hussein's Iraq. It is impossible to determine whether the ICRC considered his regime to be in violation of any international legal norms at all. The closest the group came to criticizing Saddam is a statement that Iraq was refusing to participate in the Tripartite Commission, established after the Gulf War principally to track missing persons. At the same time, the report noted prominently that the ICRC was "deeply concerned about the adverse consequences of the [UN] embargo in humanitarian terms", that the United States and Britain continued to enforce their self-imposed no-fly zones, and that "persistent reports of possible military action against Iraq were yet another source of psychological stress for the population."

So the ICRC's claims that it is treating the United States impartially, no better or worse than other countries, should be severely discounted. In fact, the ICRC's continuing public attacks on the administration's detainee policy have much more to do with the group's advocacy agenda than with any actual violations by the United States. The ICRC recognizes, and has promoted for thirty years, a different set of norms that are far more favorable to irregular or guerrilla warfare than those traditional norms recognized and applied by the United States.

An "Impartial" Advocate?

Claims that captured Al-Qaeda and Taliban members, or "foreign fighters" in Iraq, must be treated as well as Geneva POWs are based largely upon the 1977 "Protocol I Additional" to the Geneva Conventions or, more precisely, upon the ICRC's interpretation of Protocol I. Protocol I is, in fact, a pastiche. Some of its provisions clearly reaffirm longstanding rules of international law, such as the injunctions against direct attacks on civilians and civilian objects, the abuse of flags of truce, and the prohibition of a declaration of "no quarter." Each of these can be traced not merely to the aspirations of human rights activists, but to centuries of practice by states actually engaged in armed conflict. At the same time, and as the ICRC has occasionally conceded, many aspects of Protocol I represent innovations.

In particular, for those countries who have ratified Protocol I, the treaty fundamentally alters the status of irregular or guerrilla fighters under the laws of war. It gives them a lawful status and the right to POW treatment. In addition, because a successful guerrilla campaign involves hit-and-run tactics and the ability to "disappear" into the surrounding civilian population, Protocol I created a substantial advantage for irregulars by relaxing the requirements of uniforms and openly carried weapons. The regular armed forces of states, of course, must continue to distinguish themselves from the civilian population by wearing a uniform and carrying their arms openly.

Not surprisingly, Protocol I was immediately embraced by "national liberation movements", many "developing" states (at the height of its export of terrorism, Libya rushed to become the second nation to ratify Protocol I), Europe's guilt-ridden former colonial powers, and the ICRC. The United States, however, opted out--a decision that was praised at the time by the editorial boards of both the New York Times and the Washington Post. President Reagan explained the reasons in a 1987 message to the Senate:

"It contains provisions that would undermine humanitarian law and endanger civilians in war. . . . It would give special status to "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."

As a result, the United States has not ratified Protocol I and is not bound by its provisions except to the extent that they restate otherwise applicable customary international law.

This did not, and does not, sit well with the ICRC. The group had in fact conceived, carried and ultimately birthed Protocol I. It was through the ICRC's efforts that the Swiss government convened the 1974-77 diplomatic conference that produced the treaty. The ICRC prepared the original "discussion" drafts. And it was the ICRC's representatives who largely managed the conference, presenting each draft article in turn for discussion. The final document, according to the ICRC's own official commentaries, "very largely [met] the concerns and wishes of the Red Cross." Thus, in refusing to ratify Protocol I, the United States did not merely refuse the ICRC's advice and counsel--it rejected one of the group's children. Like many other disappointed parents, the ICRC has refused to take "no" for an answer.

When the ICRC criticizes the United States for holding War on Terror detainees "indefinitely" and without trial, or when it claims that any and all "coercive" interrogation of these men is forbidden, it is acting out what amounts to a twenty-year tantrum. Perhaps more to the point, it is deliberately using its role as an "impartial" advisor on the Geneva Conventions to advance its own policy agenda. The legal pretext, of course, is not that the United States must comply with Protocol I per se, but that Protocol I now represents customary international law that does bind the United States. Indeed, in March the ICRC is expected to release a "customary law study"--a document funded in part by U.S. contributions and that, in derogation of the ICRC's own past practice, was not shared with the U.S. government for comment. In it, the ICRC will likely claim customary law status for all of Protocol I. This, of course, is preposterous.

Protocol I has rarely been implemented in practice, and it is simply not the case that merely because the ICRC claims that a particular requirement is customary international law it therefore must be accepted as such. Although the ICRC is often described as the "guardian" of the Geneva Conventions and its published commentaries on these documents are sometimes called "authoritative" (although "argumentative" is often a more accurate description), it has no legally recognizable role in interpreting or applying those treaties. States alone make international law, and each state is entitled to interpret that law itself--this is the essence of sovereignty and self-government. To the extent that the ICRC commentaries are respected, it is because they generally follow the relevant negotiating records, not because of any inherent wisdom. When the commentaries depart from those records, they are nothing but rhetoric.

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 requirements 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 military 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.

Ironically, the distinction between guerrillas and outright terrorists has been acknowledged even by guerrillas and terrorists. Che Guevara, for example, once wrote, "It is necessary to distinguish clearly between sabotage, a revolutionary and highly effective method of warfare, and terrorism, a measure that is generally ineffective and indiscriminate in its results, since it often makes victims of innocent people." Unfortunately, this distinction appears to have been lost on the ICRC.

the ICRC has also taken the position that any form of coercive interrogation is prohibited. But that is the standard applicable to POWs under the Geneva Conventions. Absent Protocol I, it does not apply to unlawful combatants. Such individuals have no legal right to keep their "military secrets", particularly with respect to the capabilities and future plans of their associates. They can lawfully be interrogated on these subjects, and coercive interrogation methods can be employed so long as they do not involve the severe pain and suffering forbidden as torture, or otherwise constitute cruel, inhuman or degrading punishment. Obviously, defining these terms is no easy task. The Justice Department's Office of Legal Counsel (OLC) already has prepared two differing opinions on the subject.

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