IN JANUARY 2002, then-White House legal counsel Alberto Gonzales wrote a memorandum to President Bush in which he argued that "the current paradigm renders quaint" many of the provisions of the 1949 Geneva Conventions. This remark set the stage for a series of efforts by the Bush administration to claim that the Geneva Conventions did not apply to the global war on terror, that they applied to some detainees but not others or, at a minimum, that the president is entitled to interpret the treaty's "grave breaches" clauses as he pleases.
These and subsequent actions have set off what some have called a crisis in the laws of war, ironically pitting the U.S. government (perhaps the most Geneva-compliant superpower in history) against human-rights-minded elites whose admirable goal is to promote the very principles for which American political culture has long stood. The arguments of the Bush administration when it comes to torture, prisoner-of-war status and extraordinary rendition have been met with outrage by the international community, constitutional scholars and human-rights organizations like Amnesty International, which has referred to Guantánamo Bay as the "gulag of our times."
But the polarization of these two camps obscures the broad middle ground that exists between them. Both have forgotten that the laws of war always represented a compromise between humanitarian principles and security needs. Advocates for applying current international humanitarian law to all detainees in the global war on terror may hold the moral high ground, but they often misconstrue the political logic of the Geneva regime and its historical context. Those who argue the conventions can and should be disregarded at great powers' discretion gravely underestimate the importance of the regime to securing U.S. interests in the new century.
The contemporary problem-for both governments and transnational-rights advocates-is that neither sovereignty nor battle space is what it used to be. The solution is neither to blindly promote adherence to the letter of the law nor to continue to willfully flout its spirit. Instead, both the U.S. government and members of the transnational human-rights network should seek to update and clarify these rules through an international conference that would lead toward a new additional protocol to the Geneva Conventions.
Striking a balance between timeless moral obligations and new strategic concerns would reaffirm, strengthen and be consistent with the principles of the original conventions. It is also the surest way to prevent the regime from buckling under the weight of our changing times. In this, the United States government and transnational human-rights community should be allies, not adversaries.
IT IS TEMPTING to interpret the crisis in the laws of war as the inevitable triumph of realpolitik over morality. But this is not simply a case of might attempting to make right. The truth is powerful governments often incur significant short-term costs, even in war, to maintain a set of rules they view as in their long-term strategic or systemic interests. However, social-science research shows that international rule-sets generally weaken when historical trends outpace the treaty provisions to which states have agreed. We are living in such an era. While the moral principles of Geneva may be timeless, the literal rules no longer speak either to the realities of warfare or to evolving global norms.
Consider the following. The Bush administration did not invent the idea that detainees could be held indefinitely. In fact, this principle forms the bedrock of the laws of war: prisoners are not to be punished but simply removed from the battlefield. They must be repatriated only at the conclusion of hostilities or when the detaining power is certain the individual will not resume hostilities if released. But times have changed. Some asymmetric conflicts may never have an official "end date." It is difficult to know who might, when released, join the insurgency. In such a situation, the very application of Geneva would seem to conflict with the human-rights outcome many wish to deliver to detainees: some guarantee of due process and an end to indefinite internments.
This is why an area in need of serious review is the relationship of nonstate actors to these rules and their status under the law. In the majority of conflict situations today, the parties to the conflict include nonstate entities of various types: guerilla groups, insurgents, maritime pirates and often mere criminal bands consisting of drugged-up child recruits and armed by a never-ending supply of illicit small arms. Even the most-powerful country in the world is waging a so-called war against a transnational network of private citizens, rather than a sovereign state. All this complicates conventional definitions of "armed conflict"-a concept fundamental to the original treaties.
These nonstate players were never asked to become party to humanitarian law: indeed, by definition, they were excluded from the negotiation of these norms as well as from the opportunity to gain legitimacy by committing to uphold them. (Were they involved in creating the rules, the rules might look notably different.) Yet governments now aim to hold nonstate actors accountable to rules created to serve states. This creates a sense of injustice among revolutionaries around the globe and a view that basic humanitarian standards are little more than a conspiracy by the club of sovereigns to trample on the self-determination of others.
Let's face facts: in today's conflicts, taming war depends on bringing nonstate actors into the humanitarian fold. Yet this cannot be done without giving those actors an opportunity to buy into a revised version of the rules themselves. True, by engaging nonstate actors, the international community runs the risk of legitimizing their use of violence. But aren't some uses of nonstate violence more legitimate than others? Might ceding that be a small price to pay if insurgents, for example, could agree to limit their attacks to military rather than civilian objectives, or could agree to a minimum age for recruitment? Whether governments invite some limited nonstate participation in the negotiation of new norms (with all the practical problems this creates), or simply take their interests into account informally, the importance of creating rule-sets with some measure of credibility for those players cannot be overstated. The current Geneva regime fails in this regard.
Another trend in warfare that has outpaced international law is the increasing delegation of military services to private security firms not bound by international treaties. While it is an exaggeration to argue that private contractors operate in a complete legal vacuum, serious jurisdictional problems exist with respect to holding private security firms accountable for their employees' behavior in conflict zones, and the existing legal options (such as the U.S. Alien Tort Claims Act) are beyond the scope of Geneva. Thus, while U.S. soldiers have been tried for the atrocities at Abu Ghraib, contractors also involved in those events have not; DynCorp employees found to have been involved in rape and trafficking in the former Yugoslavia faced no more-serious consequence than termination of their contracts when caught.
Speaking of which, consider another substantive weakness of humanitarian law. While the protection of civilians has become the rallying cry for military crusades in Kosovo and East Timor, the conventions actually provide very few protections for civilians. To be sure, wanton slaughter is prohibited. But belligerents must merely avoid hitting civilians on purpose in order to comply with international law. While the significance of even such a rule is not to be discounted, this leaves an enormous gap between protection on paper and the needs of innocent individuals on the ground. What governments call "collateral damage" is perfectly legal under the law and has resulted in untold carnage in the past fifty years. Nor are states required to do anything in the aftermath to assist those they have "regrettably" maimed or whose families have been killed. And although the conventions include reference to the specific protection of women and children, they do not deal at all with the conflict-related factors that account for the majority of child and female deaths, including disease, malnutrition, displacement and gender-based violence. And while the law pays at least some attention to those who hit civilians, it pays little to those (particularly insurgents) who make this likelier by using them as human shields.
Besides these substantive gaps in the law, the regulatory architecture of Geneva is out of touch with emerging human-rights norms. Unlike other security regimes like the Non-Proliferation Treaty, the Geneva regime provides absolutely no international mechanism for authoritatively interpreting or enforcing its rules. The International Committee of the Red Cross's (ICRC) role as "guardian of the conventions" comes closest. The treaties provide for the ICRC to monitor detention practices and quietly suggest improvements to states, but the ICRC's mandate also prohibits it from openly shaming any particular state or turning evidence over to the only international body that could potentially hold violators accountable, the International Criminal Court. It remains up to states to determine how the rules are to be interpreted and applied: the failure of the international community to hold the governments accountable is partly a result of the treaty drafters' failure to set up accountability architecture.Essay Types: Essay