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 esterday,
Bush heard arguments from his national-security players about whether
the Geneva Convention applies to the Guantanamo detainees.
It should barely
be an issue.
The Geneva
Convention of 1949 was meant to regulate international warfare between
states, with some basic provision for civil wars as well.
What the U.S.
is engaging in today is something different, a war against an organization
of terrorists who do not constitute a government, rendering the
Geneva Convention essentially irrelevant.
The conflict
between the Taliban and the Northern Alliance, which was indeed
a more traditional civil war, became a subset of this larger, new
kind of warfare: the war against terror, against armed international
gangs.
The Geneva
Convention is built around the idea of detaining prisoners of war
who are not suicidal terrorists, who are instead civilized men who
— perhaps under duress — performed a service to their
nation and are willing actually to surrender once they surrender.
This is why
the conditions in Guantanamo, humane though they are, would violate
the Geneva Convention. Not only are the prisoners not getting the
required creature comforts — razors, nail scissors, etc. —
they are being held in cells.
That's a no-no,
under the Geneva Convention: "Prisoners of war may not be held
in close confinement except where necessary to safeguard their health
and then only during the continuation of the circumstances which
makes such confinement necessary."
The Geneva
Convention simply doesn't contemplate "soldiers" who will
bite their guards and strap grenades to their bodies, if given the
chance. We are in a different world than that described and regulated
by the Geneva Convention.
In an effort
to slip a Geneva requirement into Guantanamo, administration critics
— a category in which I would generally include Colin Powell
— maintain that we are violating the Convention if we don't
convene panels, as called for by the treaty, to determine whether
each individual detainee in Guantanamo is an unlawful combatant
or not.
The Defense
Department actually has a long-standing rule for conducting such
hearings.
But if the
Geneva Convention doesn't apply, this requirement obviously doesn't
apply either. And the question of whether the convention applies
or not cannot be determined by panel of military officers on a case-by-case
basis. It is a matter of state policy to be determined at the highest
levels of government.
If the U.S.
decides that al Qaeda and the Taliban don't qualify — which,
so far, is the administration position — there is no need to
have a Geneva-mandated hearing for every detainee in Guantanamo.
Now, the question
of whether the Convention should apply to the Taliban gets a little
complicated, but the Taliban seems to flunk all the major tests.
First, the
Taliban were not a signatory to the treaty. The Convention is pretty
clear that it applies — as common sense would suggest —
to countries that actually sign the thing: "the present Convention
shall apply to all cases of declared war or any other armed conflict
which may arise between two or more of the High Contracting Parties."
Now, Afghanistan signed the Convention 50 years ago, so its government
is bound by it, but the Taliban was not its government (we
will return to this point in a moment).
The Convention's
Article 4 does have provision for covering militias, but to be recognized
by the treaty they have to meet a couple basic requirements: wearing
uniforms, having a clear line of command, and respecting "the
laws and customs of war." The Taliban might meet the chain-of-command
requirement but flunks the other two, and therefore fails the militia
test. (Even if we consider the Taliban the regular army of a government,
it arguably should have to meet these basic criteria to qualify
for Geneva protections anyway, which it didn't.)
Finally, Article
4 has a provision that seems as if it might be capacious enough
to include the Taliban: "Members of regular armed forces who
profess allegiance to a government or authority not recognized by
the Detaining Power." This is the closest call, but it wasn't
just the U.S. — the detaining power — that didn't recognize
the Taliban, but the entire international community as embodied
by the United Nations. According to the U.N., the Taliban was basically
an armed gang that happened to occupy most of Afghanistan for five
years or so. What administration critics are asking is that in defiance
of the U.N. and world opinion the U.S. now retroactively recognize
the Taliban as a legitimate government. Very weird.
Now, all this
said, there should be some administrative procedure to confirm that
we have the right guys in Guantanamo, that we haven't picked up
a random Tora Bora pizza boy or farmer.
But we have
the discretion to decide what that procedure should be without adhering
to any Geneva Convention mandate, and the point of this procedure
is trying to avoid a simple mistake rather than deciding whether
the Convention applies or not to each detainee (again, which is
a matter of high state policy).
So, once we
agree that the detainees are "unlawful combatants," then
what? We would be perfectly under our rights to keep them detained
for as long as we please. But we will probably have to have trials,
under the military tribunals.
What are these
detainees guilty of? Violating "the rules and customs of war."
Get out your Latin. They might be tried under two broad categories:
1) Jus in
Bello — essentially for the way they conducted their war,
their targeting choices, including attacking civilians and military
targets without warrant.
2) Jus ad
Bellum — the basic fact of their unlawful aggression (this
would echo the first two counts against the Nazis at Nuremberg —
conspiracy to wage aggressive war, and waging aggressive war).
But one still
has the nagging feeling that none of this will matter.
The administration
shouldn't feel sheepish at all standing up for what it is doing.
It, after all, is defending international norms, against those who
would erase essential distinctions — between, for instance,
real soldiers and terrorists — simply because it's easier (maintaining
distinctions always means work).
But the winds
are blowing hard the other way, and there have been disturbing hints
that many of the detainees will be sent home, getting even better
treatment than traditional POWs — since they at least are held
until the war is over.
And we complain
about Yasser Arafat releasing terrorists?
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