Due to the change in the nature of war and how battles are fought in the 21st century, I have for some time thought that these rules need to be updated to reflect modern warfare. Large armies of uniformed soldiers from opposing nations simply do not happen in modern war, and while there may come a time it occurs again, for now the Geneva Conventions simply do not apply well to our situation. An update is what Wretchard suggests as well at the Belmont Club in a recent article about violence in Sri Lanka:
British Defense Secretary John Reid created a stir by suggesting that the Geneva Convention be updated to reflect the realities of terrorism. "The legal constraints upon us have to be set against an enemy that adheres to no constraints whatsoever." It is probably fortunate that a European has posed this question because this ball really belongs in the court of the transnationalists. Any attempts to obtain realistic rules of engagement against terrorists by a US administration will be branded as fascistic. So lets pose the question: how should one deal with combatants who have no regard for ceasefires, women, children, flags of truce, churches, mosques or the Rules of War?
Commenters at the site considered this:
Declare them "pirates" and summarily execute them. If they want protection in the state of nature, let them raise a victorious army according to the ancient laws. They demonstrate that they do not want quarter, give none, and should be given none.The Winds of Change looked at this very issue in June of 2004 and with extensive analysis of the Geneva Conventions and points out:
I think that the experience of US troops over the past 3 years and put together and reviewed with an open mind might produce good rules of engagement. It would be a mix of moderate duress combined with kindness (kindness is often a good method when used appropriately). It would be something that is not the Geneva Convention but nevertheless a code people could live with and justify. That plus many of the purpose built small-warhead weapons systems, including non-lethal lasers and sonics would be quite useful.
Politics and pig-headed political correctness has created a split-level international morality. The imposition of fantasy standards on those fighting terrorists has created an incentive to cheat. It will lead to a hypocritical system with one set of avowed standards and an underground system of workarounds. In fact, some human rights advocates have argued for absolute nondeviation from the current Geneva while hoping aloud for men who would risk their careers and disobey them when necessary. This was a way of ostensibly preserving "principle" while allowing flexibility. But it was really another way of saying "bring me the head of Garcia but don't say how you got it".
If the UN, NGOs and Europeans get shot to pieces enough and face barbarism in enough places they themselves might cobble together a halfway realistic method of dealing with terrorist combatants.
This type of warfare using suicide targeted explosives and hiding among civilians between attacks, strips these "fighters" of all legal rights and protections. They have no rights under the Geneva convention, or any national or international law. They place themselves totally outside such protections.
Those who cry tears over treatment of jihadis and similar terrorists during confinement should spend several weeks talking to families of the victims of these senseless bombings.
-by al fin
Looking at this map one could say Sri Lanka has something in common with Israel, Darfur, The Baltic states, Panski Gorge, the Kashmir region, Liberia, the Ivory Coast, the Philippines, East Timor. Etc, Etc…
The GC applies ONLY to conflicts between those NATIONS that have signed it;
That URL links to the '49 GC. There are 5 of them, I think. I keep that URL because it is the last one the USA joined. There is a '77 GC, but the USA is not a party to that one. The 77 GC was designed by terrorists to protect terrorists and the Senate told the President (Reagan) to not bother sending it up. He said there would be ice skating in hell before he did. Carter wanted it , but he was out of office before it was finished.
"the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them."
If you are not a "High Contracting Party", it doesn't apply. Period.
Technically, since Al Qaeda isn't a High Contracting Party, they are not bound to follow the GC, Nor is anyone else fighting them. This POV isn't accepted by the Internationalists, but that is to bad, sicen they are not in power, what they think doesn't matter.
Before the WoT is over, the USA will have to withdraw from the GC as well as the UN. If we don't, we will lose. Both of these treaties were written to fight the last war. The Last war is over, this is a new war, and it's not your daddy's war.
Withdraw from ALL International treaties and make seperate treaties with individual nations. Then After we win this war, we can look at the bulk treaties again.
-by John Sanford
As observed they are all aleady outside the conventions, and may be dealt with summarily.
The persons the US call "illegal combatants" (in fact persons without protected status under the conventions) under international law can all be executed / abused / imprisoned forever in any way the USA itself deems legal.
In any war prior to WWII they would have been already dealt with summarily as pirates, marauders etc - shot.
How about following the lead of US Army Colonel Rodgers who when fighting Muslim rebels in the Philippines, buried killed Muslim fanatics together with pig carcasses, or beheaded and sewn into pig skins? The corpses of slain Islamoid terrorists could be buried with, or better yet fed to the pigs.
-by fellow peacekeeper
Wretchard asked: "how should one deal with combatants who have no regard for ceasefires, women, children, flags of truce, churches, mosques or the Rules of War?"
Chthus: "No police, no summons, no courts of law..."
Dan: "summarily execute them..."
DRat: " kill 'em all"
PRFA: "put a bullet in their heads..."
Dan: Nguyen_Van_Lem them
bobalharb: "Play by their rules, only play harder."
faeless: "For every suicide bomber, kill their entire village."
fellow peacekeeper: "How about following the lead of US Army Colonel Rodgers..."
What a tough crowd. I have always wanted to do stand-up comedy but the fear of having even one of you guys in the audience is enough to make me give up on the idea... completely. But seriously...
I understand the desire to want to punish one's enemies, to make them pay. Without it, civilization as we now know it might not have lasted this long. After all, you can only turn the other cheek so many times before you find you are holding your head underneath your arm like a football.
That said, it seems to me that there is one very important barrier to many of the suggestions that were offered. It's not the outcry of pacifists or the inevitable reporting in a media not at all sympathetic to the cause. It's not the fear of our soldiers being brought up on war crimes charges. It's not even the darkening effecting such behavior might have on the light of our own soldier's souls. Rather, it's the loss of information.
It seems to me that killing unlawful combatants on the spot deprives coalition forces of the ability to ascertain what said combatants know about the locations, plans, capabilities, etc. of their fellow travelers.
My understanding is that this kind of information has proved very useful in the past and in the present, i.e. that lots of bad guys get caught this way.
There is a secondary problem with this point, however. Obtaining information usually requires interrogation, sometimes lasting weeks, months, or years. And we all know what kind of trouble that has produced.
Still, I see a cost benefit analysis here and can anticipate conditions where summary execution might be preferred to lengthy interrogation and holding in secret and not so secret prisons.
-by Sterling Dave Hunter
Mr. Hunter, as much as I agree about the intelligence, the jihadi's should be taken out and executed as soon as they are of no more use. There are two reasons for this,
1) There would be no attempts to release them by the courts or have them released by other means,
2) Their desire is to claim their reward for devoted service to Allah and we would be cretins to deny them this journey.
Their only value now is as a conduit of information, any other value they may have had as human beings they have already shed.
Definition: “Dar al-harb” - areas where Muslims are in the minority. House of War
Definition: “Dar al-Islam” — the house of submission or the house of God; the territories where Shari’ah rules Muslim communities.
Definition: “Dar al-Kufr” — abode of disbelief , prompting Da’wah (calling to Islam)
It would be fascinating to know from the various posters if any can identify a moment when they “turned” — i.e., saw clearly for the first time that the Islamic terrorists are beyond any human covenant and must be dealt with not with hatred, but with the passionless dispatch needed for dealing with a rabies-infected animal approaching your children.
On several occasions I’ve posted some blather that most of us in the Western industrialized democracies simply have no grasp of the way most of the rest of the world lives — gramma slowly dying of cancer in the living room while mom cooks dinner over a wood fire, the kids assemble tennis shoe uppers for the local Nike subcontractor, and the goats nibble at straws poking out of the mud and dung walls.
On further reflection, I see I’ve been an idiot. If that cultural gulf were actually the basis of *our* conflicts with terrorists, then we should expect to be in conflict with terrorists being spawned by every impoverished third-world culture on the globe. That is precisely the racist stereotyping that many people in America use to discount the vast majority of decent, law-abiding residents of American inner-city ghettos. And of course, no such thing is happening.
It seems redundant to point out that the Prophet Mohammed during his lifetime commanded numerous military assaults on those who opposed his vision, routinely ordering summary executions of captives. In the first three decades after his death, the leadership of the new religion changed hands three times, with each new leader ascending by assassinating his predecessor. By 732— a scant century after the death of Muhammed — Islam had already been spread by military onslaught from the Arabian Peninsula north into Turkey and Syria, and west across North Africa. That year an Arab Islamic army of invasion moving into France from the Iberian Peninsula was turned back by Charles Martel and his Frankish armies at the Battle of Tours (Poitiers). What we are experiencing in this time is simply the continuation of Islamic expansion of Dar al Islam by the subjugation of Dar al Harb, which has been in progress for some fourteen centuries.
It is finally undeniable that the totalitarian barbarity of Islamic Jihadism is a defining characteristic of Islam, cropping up wherever a significant Islamic population has arisen within a non-Islamic culture. The most casual scan of weekly news from around the globe shows that Islamic terrorists are busy murdering, shooting, stabbing, raping, hacking, exploding, maiming, torturing, beheading, and generally abusing Hindus in New Delhi, Mumbai, Varanasi, Srinagar and Pakistan, Animists and Christians in Darfur, Coptics in Egypt, Zoroastrians and followers of Baha’u’llah in Persia, Jews, Catholics, Episcopalians, Scientologists, New Age adherents of Edgar Cayce, Baptists, agnostics, atheists, journalists, grocers, and Liberal Democrats everywhere else.
But we must remember they are “equal-opportunity” terrorists, murdering fellow Muslims in even greater numbers, to intimidate them into submission.
Almost any culture can steer some of its own to extremist attitudes and behavior — America has had its share of Unabombers and Timothy McVeigh’s. But Islamic terrorism, Jihad, the barbarity that defines Shariah — these have returned to the fore as the Islamic Arab cultures wallow in the greatest abundance, wealth and power they have ever known.
Meanwhile, do they use this wealth to create, to educate themselves, to become self-sufficient? While some of the oil wealth has been applied to construction projects, the arab states have mostly become massive welfare societies, hiring (and despising) alien nationals to do their menial jobs, electing Koranic studies rather than engineering degrees. Farouk El-Baz, member of the US National Academy of Engineering, points out that “during the past two decades, South Korea registered in the US over 44 times the number of patents from all Arab countries combined...” and “ ... the number of books translated in all 22 Arab countries is equal to one-fifth of those translated into Greek.” (http://weekly.ahram.org.eg/2004/710/feature.htm)
This is monstrously perverse.
-by the mad fiddler
Perhaps such tactics are reflective not merely of battlefield realities - i.e., we can clean their clock in a fight that is even 10% traditional by "law" - but a basic attitude toward human relations.
The Ayatollah Khomeni openly declared war on the U.S. in October 1987, but apparently was not surprised when Iran was not turned into radioactive slag 30 minutes later.
The current "President" of Iran calls for the destruction of Isreal and the general extermination of democratic society, worldwide, but is downright offended if we even suggest we might defend ourselves and our allies.
Osama Bin Laden calls for the triumph of Islamic radicalism but does not seem to think that this should result in the outlawing of the entire religion and the production-line style elimination of its worshippers.
These people think about "war" in a basically different way, as a method of continuous existance rather than something to be gotten over with ASAP. So, given that, they have different rules than we do.
So, it doesn't matter if the prisoner is an Iraqi soldier in uniform, a Taliban soldier with no consistent uniform, an Iraqi resister, an Iraqi street criminal or an al-Qaeda war criminal. It seems that we can put them on trial (given a chargeable offense) – and US law recognizes that we can try foreign nationals, overseas, in military tribunals that are under somewhat different rules of procedure and evidence than US Federal courts stateside. But we still have to apply a certain amount of due process (Art. 14; Art. 64 et seq), even when IVGC does permit the death penalty.
The article concludes with this thought
UPDATE: Outstanding discussions in the comments section.
"the Powers who are parties thereto shall remain bound by it in their mutual relations."
In other words, it is a kind of contract which we can largely ignore when dealing with Bin Laden and his henchmen--where there are non-parties involved, we needn't obey it in our relations with those non-parties.
Now, I'm unalterably opposed to torture, mistreatment, rape, execution without trial, and anonymous detention. But the Conventions don't apply to al Qeada.
-by Rob Lyman
I yield to no one in my abhorrence of cruelty. And it seems that a failure of leadership has resulted in a situation deserving only regret, and not defense. About this a great deal has been written and I have nothing to add except to concur that it is an issue for the election, and I’m considering whether the current administration can continue to receive my support or whether that support must necessarily be forfeit.
And yet. The recitation of the law, the enumeration of the restrictions of power and the rights of the accused, the imperative to compliance, the parallels drawn with the infamous whose names became synonymous with the observance of human rights – in the breach – there is an implicit assertion of simplicity. The law says it, so just do it, and that settles it. I’m grateful to know what the laws and treaties say, and some erroneous assumptions I’d had have been corrected. But while I’m much closer to understanding what is legal, I’m no closer to understanding what’s right.
The only defense of torture which I find admissible is the defense of Necessity, which is impossible to codify. By attempting to codify any defense of torture at all, the administration set out on a path towards gratuitous cruelty and abuse. But the absence of any codification leaves interrogators who face genuine necessity out in the cold. This is appears to be an insoluble dilemma, as Mark Bowden has noted in the Atlantic.
Further, I’d note that the decisions on the treatment of prisoners, whatever the number and gravity of errors in their derivation, were decisions which I understand to be taken in the course of the defense of my life and rights as a citizen of this country. Unlike Pinochet, or Nixon, these decisions were not taken to maintain political power.
These considerations do not diminish my anger or judgment of the indefensible decisions one bit. But they do lead me away from the temptation towards indignation.
Thank you for the very thoughtful discussion.
But although you may have refuted certain conclusions by pundits here and there, you ultimately I think have danced completely around the issue.
To my knowledge, no one was arguing that the sexual abuses which occured at Abu Ghraib are justified. Most of you post ultimately seems to be trying to prove that what occured at Abu Ghraib is wrong, which has never been in serious question. Quite a few people have pointed out that even if the Geneva Convention doesn't apply here, that the UCMJ does. Of course, its rather pointless to point that out because the UCMJ IS being applied here and people are being tried for the crimes.
I think that the chief point of all concerned is that much of the outrage on the part of the ACLU and other watch groups is made rather silly in the light of its unilateral application. I've never seen an attempt by any human rights group to try to get Al Queda to stick by some rules regarding the treatment of prisoners, kidnapping, etc. Why is this? Well, obviously, because no one seriously expects Al Queda to reform or improve its behavior. American forces are subject to effective criticism precisely because it is obvious that they do care, and as such the whole show of hand wringing is rendered a political farce.
I am in whole hearted agreement that certain minimal standards of fairness and justice ought to apply to even terrorists caught in the act of murdering innocents, but the general claim by the ACLU and others seems to be much closer to the notion that the full rights of Citizenship ought to apply to terrorists, criminals, spies, sabateurs, etc. regardless of the nature of the situation. Are you really backing the GC/UCMJ/etc. in full, or only as it is useful for making the point you wish to make? Would the ACLU be satisfied if we suddenly decided to try and execute the vast majority of the prisoners as spies and sabateurs? Can you imagine the outcry that would occur if we actually moved from being somewhat undecided over the fate and status of these prisoners to deciding that for legal convience they should just be tried and executed?
I also feel compelled to add a couple of Public Choice observations. All the legalisms aside, in extremis people obey laws either because they're compelled to by force or because there's a mutuality of interest, or both. Ultimately there is no force of arms backing up the Geneva Conventions and no policing force... so the only motivation left for adherence to it is mutuality (as well as a certain commitment to abstract principle, and a revulsion for torture in general). Correct me if I'm wrong, but I don't think the US has ever fought an enemy that adhered to the Geneva Conventions, even imperfectly. Which is why we train our military personel to resist and endure torture. To claim that mutuality isn't germaine is to simply ignore one of the most foundational principles of all law.
Agree with Ian, though the question is always "where to draw the line" in defining it.
Some things are really clearly torture. Sexual assault, for instance, is wrong. Period. But I don't consider sleep deprivation and loud music at all hours to be torture, and I think it's a completely valid tool for foreign terrorist interrogations even though I'd be up in arms if it was used against citizens. So the issues of jurisdiction and standards Bob raises are important. The last thing we need is a War on Terror that turns into one big farce of an O.J. trial.
Beyond that, Robin points to the confluence of terrorism & WMDs. Think of the TV series "24" here. Torture is not very reliable, but if someone is not willing to talk and you believe there's a dirty bomb ticking right now in Mahattan... you're up against "unreliable" vs. "certain failure" and there is a legitimate debate to have. Including the point that legitimizing it in one conext may well result in having torture legitimated more broadly as a negative consequence. I still tend toward saying no, BTW, but it's a valid and appropriate discussion.
And opponents like myself must also acknowledge that saying 'no' here may mean a harder line on the 'yes' we say when going after terror-supporting and funders, because we have to stop these things farther up the line to keep our odds the same.
Yes, the U.S. has fought countries that adhered to the conventions. Believe it or not, with some exceptions Nazi Germany mostly did adhere to them in WW2. Italy did. The belligerents in WW1 did as well. [The current Geneva Conventions were not signed until WW2 was ended, although previous versions were in effect as early as 1925 dealing with poisonous gasses]
Beyond that, however, you do have a point. Japan did not in WW2. North Korea did not. North Vietnam did not. Iraq did not. The Somalis only captured one American, and surprisingly they were pretty good. But most (nearly all) enemies the USA fights in the War on Terror will not adhere to the Conventions, and in fact many are quite happy to use its protections as a weapon.
As Bob notes, that does not change the legal obligations involved... but it does give cause for considering recent arguments that many of these conventions may need to be changed or reviewed to acknowledge the reality we face. Which brings us back to Robin Burk's questions, and The Discussion We Need To Be Having.
But we do need to begin from an agreed set of facts, and a shared understanding of our current situation. Thanks, Bob.
-by Joe Katzman
"As someone most people who post here would consider a Liberal I find it odd to find myself saying the following: torture is evil. Just don't do it.
I might add, that torturing people is giving aid and comfort to your enemies, who use it to show you as hypocrites."
This is the kind of self-righteous posting which annoys the h3ll out of me. Noone here is arguing that the US should pursue a policy of widespread and systematic torture. Your insinuation ammounts to setting up a strawman arguement. The questions of what is reasonable treatment of prisoners captured on a battlefield go far beyond issues of torture. The torture is not something that anyone here believes should be reutine. You are dodging the more important and more difficult to answer questions regarding the treatment of combatants who are not following 'the rules of war', have no established citizenship or are from countries of origin which have no desire to repatriate them, or which would be repatriated to governments which are in a non-cohesive state with no central accountable authority which are unlike anything in the West. It is these legal questions which are really at stake, not whether or not the US has the right force prisoners to engage in oral sex with each other, etc.
Just to make clear for those who may not have read the earlier referenced threads, I never touched on torture or the Geneva Conventions in my earlier post or comments. I work among people for whom the Conventions are a professional expertise and concern ... for now, I choose not to comment on that specific topic.
I would, however, like to call people's attention to the fact that the debate I at least hoped to start is a domestic one and a matter of policy, first and foremost. How shall we as a people (in the US) achieve the best balance between security and liberty in a world in which there are a) non-state actors demonstrably willing to commit mass murder for ideological reasons, and apparently not sucsceptible to the restraints placed on nation-states (which worked, for instance, in the Cold War) and b) WMD technologies in non-state hands?
Implicit in some of my comments (and explicit in one) is my belief that we need to look very carefully at what are truly human rights and rights that are deeply fundamental to our identity and our liberty, and we need to safeguard those.
OTOH, there are "rights" which I find less central, less inherent in being human or in being a citizen, and more a matter of procedural guarantees under law. Which of these could, or even should, be open to compromise for the sake of security? And if we do so open them, how will we prevent the abuse of that opening?
Cases in which a US citizen is believed to be actively plotting to commit terror acts against US citizens, likely to result in mass murder, might be a good place to start thinking about this. An easier place to start might be with non-citizens, either here on a permanent residency or on a visa.
Now, there are those (and the ACLU is foremost among them) who will argue that we must never step back from any legal protections in place, and indeed must seek to expand them whenever possible. Such an outlook seems to animate Bob's comment:
no fallible human can be trusted with unlimited power. The President's name isn't Sméagol. Is it?
The first sentence I agree with - indeed, I am asking how we can put responsible constraints on any powers granted to government officials in the name of security against mass-casualty attacks by non-state actors.
The second bit, however, is the sort of rhetoric and mindset that caused me to stop contributing to and belonging to the ACLU years ago.
Worse: if those who care about civil liberties persist in seeing this as a one-sided issue - liberty above all, the security matters just aren't as central or as dangerous - then I fear that the next major mass-murder in the name of Islamacism or some similar ideology will do far more damage to our civil liberties than any well-thoughout mechanisms we could devise ever would do.
And so I once again challenge Bob Harmon, the ACLU and others: how, specifically, should we change our current mechanisms and laws to best balance the threat of ongoing terror attacks against the desire to protect our core liberties? Given that any law or mechanism (such as an overhauled FISA court) will involve some degree of human discretion, how will we reduce the likelihood of abuse while maximizing the ability of officials to protect lives, the economy and the political stability of the country while it is under attempted attack?