If you believe the editors of The New Republic (TNR), the “vast right-wing conspiracy” has found another victim–this time in the form of the Geneva-based International Committee of the Red Cross (ICRC). In its December 20, 2004, issue, TNR castigates the likes of Rush Limbaugh, Bill O’Reilly, and the Wall Street Journal’s editorial page for daring to contest and criticize the ICRC’s own repeated attacks on the Bush administration’s classification and detention of enemy combatants captured in the war on terror. The ICRC has been the subject of all this right-wing “vitriol,” note TNR’s editors, for “having the temerity to do its job.” In fact, the ICRC has drawn this fire not for doing its job, which is to act as a neutral and impartial interlocutor during wartime. Rather, it has been the subject of well-deserved criticism for acting like an international-advocacy group whose job is to promote a radical vision of international law that the United States has flatly rejected, and which would do great harm to its vital national interests. That is why conservatives are rightly miffed at the ICRC, and why they have properly let their views be known.
Founded in the mid-19th century as an organization dedicated to relieving the suffering of wounded soldiers on the battlefield, for more than a century, the ICRC attempted a scrupulous neutrality among warring nations–even between the Allies and the Axis during World War II. Because of this neutrality (and because it was based in neutral Switzerland), the group was accorded a unique international role in defending the interests of prisoners of war (POWs) and victims of warfare–a role specifically sanctioned in the four Geneva Conventions of 1949. These treaties, which define the minimum standards of humane treatment during armed conflict for the wounded and sick in the field, victims of shipwreck, prisoners of war, and civilians, recognized the ICRC as “an impartial humanitarian body” and a preferred interlocutor.
This, however, is no longer an accurate description of this venerable organization. For the past 30 years, the ICRC has been attempting to “move” the laws governing armed conflict towards providing greater protections for irregular or guerilla fighters, what we would today call terrorists. This appears, in part, to be attributable to the general sympathy of “progressive” elites for post-World War II national liberation movements, which favored guerilla organization and tactics, and, in part, to a quixotic hope that such irregulars would behave less savagely if brought more firmly within the international legal system. The high watermark of these efforts was the 1977 Protocol I Additional to the Geneva Conventions, which grants significant protections–and advantages in combat–to guerillas.
The United States, however, rejected this treaty for the very reason that it granted a privileged legal status to individuals it considers to be “unlawful” enemy combatants–such as the captured al Qaeda and Taliban members now detained at Guantanamo Bay, Cuba. This classification, which TNR incorrectly claimed was “invented” by the Bush administration, is well grounded in the traditional laws of war, which still apply to the United States. (TNR’s fact checkers, had they bothered, would have discovered this by examining either the relevant U.S. Supreme Court precedents or any of the standard manuals of military law–such as the British manual used during the two world wars–where the designation of “enemy combatant” and requirements for “lawful” combatant status are discussed in detail.) As the Independent Panel to Review DOD Detention Operations, headed by former Secretary of Defense James R. Schlesinger, explained in its August, 2004, report, in “1986 the ICRC acknowledged that it and the U.S. government had ‘agreed to disagree’ on the applicability of Protocol I.”
Nevertheless, as the Schlesinger panel further noted, the ICRC “continues to presume that the United States should adhere to this standard under the guise of customary international law.” That presumption is legally wrong (since the United States cannot be bound by “customary law” to which it has persistently objected), and would require the United States to treat captured al Qaeda and Taliban members as honorable, lawful prisoners of war under the Geneva Conventions, or as civilian criminal defendants, entitled to a speedy trial in a civilian court. The detainees merit neither status, and the United States’ refusal to humor the ICRC’s pretensions in this respect has prompted that organization’s public attacks on the Administration’s policy at Guantanamo Bay and elsewhere.
Most recently, of course, a supposedly “private” ICRC report (dated June, 2004), detailing the group’s objections to the Guantanamo detention policies, was leaked to the media in an obvious effort again to pressure Administration officials into adopting the ICRC’s approach. Although the actual source of this leak–to the New York Times–is unclear, the ICRC was quick to confirm that it is “concerned that significant problems regarding conditions and treatment at Guantanamo Bay have not yet been adequately addressed.” As described in the media, that report accused the United States of practices “tantamount to torture,” including simply holding detainees “indefinitely.”
Nothing illustrates how far the ICRC has strayed from its historic role than this peculiar claim. The right to hold captured enemy combatants until hostilities end is one of the most basic and well-established aspects of the laws of war. Its establishment was, as it happens, a major humanitarian advance in the laws and customs of war–since it is inextricably linked with the obligation to take an enemy prisoner, when possible, rather than simply killing him on the battlefield. Doubtless, not knowing when the war on terror will end, when al Qaeda in particular will finally be destroyed, imposes psychological stress on the Guantanamo detainees, as it does on the rest of us. It is stress, however, that they–and their compatriots–brought on themselves. Perhaps more to the point, it is stress that the law, as reaffirmed by the Supreme Court in its 2004 war-on-terror cases, permits. (From the ICRC’s perspective, of course, to the extent that the Supreme Court’s position differs from its own view of “progressive” international norms, it is irrelevant.)
Similarly, the ICRC considers any method of interrogation designed to coerce cooperation, whether or not it involves the severe pain defined by the law as torture, to be forbidden. Certainly “stress” methods of interrogation, such as forced positions, exposure to temperature extremes, and solitary confinement, are not pleasant, and they can constitute forbidden “cruel, inhuman or degrading” treatment if taken to a sufficient extreme. However, opposing the use of any coercive method, simply because it is designed to coerce, goes far beyond current legal requirements, and ignores the very real and immediate threat faced by the United States.
The purpose of interrogations is to obtain information that will permit the U.S. to anticipate attacks against its forces overseas and, most especially, civilian targets at home. By insisting that no coercion is permissible, the ICRC is demanding that captured al Qaeda and Taliban members be treated as lawful POWs would have to be treated under the Geneva Conventions. In fact, under the Geneva Conventions, coercion is forbidden for individuals who qualify as POWs. The reasoning behind this rule is straightforward. The Conventions assume that warring parties will be nation states whose armed forces meet the basic requirements of lawful combatancy. That is, they are subordinate to a responsible command structure, wear uniforms, carry their arms openly, and comply with the laws of war in their operations (particularly the absolute injunction against targeting civilians for attack). Given these circumstances, each state has an equal right to kept its military capabilities and plans secret, and a POWs cannot be forced, in any manner, to betray his allegiance to his own country by revealing those secrets.
None of this applies to either al Qaeda or the Taliban. Al Qaeda is not a state, not a party to the Geneva Conventions, and it has no legal or moral right to keep its capabilities and plans secret. The Taliban, although it once controlled about 90 percent of Afghanistan, was never recognized as the Afghan government, and did not organize itself as the lawful armed forces of a state. As a result, the members of al Qaeda and the Taliban are not entitled to the benefits of POW-status, whether through actual application of the Geneva Conventions, or through ICRC insistence that a failure to apply those requirements is “tantamount to torture.”
By taking this position, the ICRC has, in fact, ignored the humanitarian considerations that support using “coercive” methods of interrogation against al Qaeda and Taliban captives. These groups deliberately target civilians for attack, and civilians have an indisputable right–under international law as well as under most domestic legal regimes–to be protected from such attacks. Article 6 of the International Covenant on Civil and Political Rights, for example, guarantees “every human being” the “inherent right to life,” and further states that “no one shall be arbitrarily deprived of his life.” The states parties to this treaty, including the United States, have an affirmative obligation to ensure this right–and they are not permitted to derogate from this obligation. By demanding that the Guantanamo detainees be treated as POWs, the ICRC has lost sight of this imperative. In fact, like the proverbial “generals,” the ICRC is fighting the battles of its past–a pre-September 11 past where the greatest danger to the individual came from governments and, during wartime, the armed forces of governments. That world, of course, crashed into lower Manhattan along with the ruined Twin Towers. To again quote the Schlesinger report: “the ICRC, no less than the Defense Department, needs to adapt itself to the new realities of conflict, which are far different from the western European environment from which the ICRC’s interpretation of the Geneva Conventions was drawn.”
In the meantime, some choices are in order. The ICRC can certainly continue to act as an advocate, pushing an agenda in the same manner as other nongovernmental organizations like Human Rights Watch and Amnesty International do. That role, however, is fundamentally inconsistent with the ICRC’s traditional job of neutral interlocutor–on which its unique status in international law, and especially the recognition it enjoys under the Geneva Conventions, is premised. Similarly, it is as an impartial organization, and not an advocacy group, that the ICRC receives about 1/3 of its annual budget–$203 million in 2003 alone–from the American taxpayer. The ICRC cannot keep that status, or the money, and not do the job. It must choose, and soon.
–David B. Rivkin Jr., Lee A. Casey, and Mark Wendell DeLaquil practice law in the Washington, D.C., office of Baker & Hostetler LLP. Rivkin and Casey served in the Justice Department under Presidents Reagan and George H. W. Bush, and are members of the United Nations Subcommission on the Promotion and Protection of Human Rights. The views expressed are the authors’ own.