War Crimes and Punishment
What constitutes due process for terrorists?

Stalin, Roosevelt, and Churchill in Tehran in 1943


Clifford D. May

In 1977, however, “acceding to pressure from the Soviet bloc and such organizations as the Palestine Liberation Organization (P.L.O.), the United Nations added two new Protocols to the Geneva Conventions,” one of which, Protocol 1, provides protections to terrorists — despite the fact that they routinely violate the most fundamental laws of war. Shawcross outlines what happened next:

The Carter administration signed the Protocol 1 treaty, but held off on ratification so it did not become part of U.S. law. Ten years later President Reagan announced that the United States would not ratify the Protocol; he declared that to give terrorists Geneva Convention protections would aid “the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices.”

Most members of the United Nations, including most of America’s European allies, did not find that logic compelling. They ratified Protocol 1. Since then, the activists, lawyers, academics, and journalists that John Fonte calls “transnational progressives” have insisted that Protocol 1 has become “customary” international law and that it is therefore binding on the United States — without Senate ratification, and whether Americans like it or not. 

It is on this basis that we keep hearing in the media that America is violating the Geneva Conventions by maintaining the detention facility at Guantanamo, by not awarding prisoner-of-war status to captured unlawful combatants, and by not giving such unlawful combatants civilian trials. Yet as Shawcross shows, those detained at Guantanamo enjoy rights and protections never dreamed of by the defendants at Nuremberg.

Transnational progressives have also judged the Bush administration criminal for having used “enhanced interrogation techniques” — which they denounce as illegal “torture” — to pressure Khalid Sheikh Mohammed and a few other top al-Qaeda commanders to reveal what they knew of ongoing terrorist plots and operations. (A total of about 30 unlawful combatants were subjected to coercive tactics; exactly three were waterboarded — none at Guantanamo.) By contrast, criticism of President Obama — for ordering the killing of Osama bin Laden and using drones against terrorists in Pakistan and Yemen — has been muted. 

In the 1940s, Shawcross writes, the United States and Europe had “the will and the ability to sustain their defense of freedom.” To meet the Islamist challenge of the 21st century, the Western democracies again “must be self-confident and strong enough to defend themselves against the forces of tyranny.” The evidence that America and Europe have such strength and self-confidence is not overwhelming.

Europe in particular, Shawcross fears, “risks repeating the fatal weaknesses of the 1920s and 1930s. If American power is withdrawn, the world will finally realize how much they owe to the most benign hegemony ever created.” By then, of course, it may be too late for such awareness to make a difference.

— Clifford D. May is president of the Foundation for Defense of Democracies, a policy institute focusing on national security and foreign policy.