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 hat
is it that the Bush administration's European critics like so much
about civilian casualties?
It's a natural
question, given the Europeans' evident contempt for one of the purposes
of the Geneva Convention: to deter un-uniformed soldiers from hiding
among the civilian population — a practice that obviously makes
it impossible for an attacking army to distinguish between legitimate
targets and noncombatants.
In other words,
the Geneva Convention seeks to protect innocent civilians by keeping
soldiers in uniform, and by defining those combatants who don't
wear uniforms as being outside the rules of warfare and undeserving
of the privileges afforded to legitimate prisoners of war.
During the
bombing in Afghanistan we heard a lot from the Europeans about collateral
damages, so it is strange that they should now turn around and be
willing to overlook the chief cause of civilian casualties in Afghanistan:
al Qaeda and Taliban troops who not only didn't wear uniforms, but
actively hide among civilians.
One might even
think that the Europeans would be especially eager to define al
Qaeda and the Taliban as outside the rules of civilized combat,
given (again) the Europeans' understandable concern with protecting
civilian populations from the depredations of war.
But that, of
course, would require following a consistent moral principle rather
than simply a knee-jerk anti-Americanism: i.e., the Americans are
wrong when they bomb terrorists who are hiding among civilians,
and wrong when they try to follow rules to discourage terrorists
from hiding among civilians.
This is just
one of the aspects of the controversy over Guantanamo that is maddening
in its absurdity and dishonesty (for NR's take, see the editorial
from the latest issue). And — to pick out another thread of
the European reasoning here — if our allies care so much about
the Geneva Convention, shouldn't they insist that governments have
to actually sign it to be considered a party to it?
Not only has
al Qaeda not signed the Geneva Convention, al Qaeda and the Taliban
aren't even governments. Remember, it wasn't just the United States
that said that the Taliban wasn't the legitimate government of Afghanistan,
even the United Nations took that position.
At its heart,
the Geneva Convention, as Cornell's Jeremy Rabkin explains, is about
reciprocity between governments — you treat our prisoners decently,
we'll treat yours decently.
Saying it applies
to al Qaeda and Taliban prisoners is like saying the START II agreement
should apply to relations between the U.S. and Belgium, or —
even more aptly — to U.S. relations with the Hell's Angels.
Because al Qaeda and the Taliban are, in essence, armed, criminal
gangs, and nothing more.
Also, if they
really are lawful combatants, as the administration's critics seems
to suggest, that would lead toward a nasty conclusion: that the
attacks on the Khobar Towers, the U.S.S. Cole, and (maybe)
even the Pentagon were justified acts of war carried out on legitimate
military targets, and so the perpetrators can't be tried for their
actions any more than a U.S. pilot could be tried for blowing up
a Taliban arms depot.
For crystal-clear
thinking on these issues, the best source is Ruth Wedgwood, a law
professor at Yale and Johns Hopkins. She considers the whole Geneva
Convention controversy a bit of a sideshow.
According to
Wedgwood, even if the Convention applied (which she insists it doesn't),
it still allows for interrogation of prisoners, doesn't require
you to jeopardize camp security if it would be endangered by providing
certain amenities (i.e., the Geneva Convention isn't a suicide pact),
and allows for military trials.
Even many conservatives
have been puzzling over the question of what body of law these prisoners
would be tried under. Wedgwood explains that this area tends to
be governed by customary law, especially the customs that have grown
up around the Hague Convention of 1907.
The Guantanamo
prisoners can be held to account for "unlawful belligerency"
(just what it sounds like), for violating "the rules of proportionality"
(even if you attack a military target, it has to be done with requisite
care not to kill civilians), and other violations of "the rules
and customs of war."
What if none
of the prisoners in Guantanamo directly participated in terrorist
attacks? It doesn't matter. The Anglo-American concept of conspiracy
is quite broad, Wedgwood says, and al Qaeda could easily be considered
a "single purpose entity" — like a "RICO enterprise"
in the U.S. — devoted to murder and mayhem.
Simply joining
al Qaeda would be the crime. Of course, the Europeans still need
to figure out if it's that, or joining the U.S. military, that's
the worst offense.
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