With the recent Supreme Court ruling in the Hamdan case, concerning the treatment of detainees captured in the War on Terror, the Geneva Conventions are coming under scrutiny once more. Nearly two years ago I took a lengthy look at the Conventions, and decided it was time to update them.
I’ve given it some more thought, and I think we might be better off junking them entirely.
The Conventions were written in a different time, for different times. They were crafted when “war” was something that happened only between nation-states, and the agreements were between those nation-states, governing what sorts of things were and were not permissible. They are civilized agreements, backed up by most uncivil threats: you do things fairly and decently, and so will we.
Those days are no longer. It’s been over half a century since the United States has fought a war against an enemy that was a signatory and complied with the Geneva Conventions, but we have been in many struggles.
Now, I’m no lawyer (military, Constitutional, or otherwise), but I’ve always thought of treaties as contracts between nations. I used to watch The Paper Chase, though, and learned a bit about contracts from John Houseman.
The first argument I had for not applying the Geneva Convention is that the people being held in Guantanamo, among other places, simply have no standing to appeal to the Convention. They represented no nation-state, and therefore could not possibly be signatories to the Convention. And those from nations who recognize the Convention — well, their governments weren’t overly concerned about their well-being in the first place, and were less than eager to claim them.
But that argument fell apart for me when I realized that while the detainees might not have standing to press their case, concerned US citizens — whose government IS bound by the Conventions and have a legitimate interest in the adherence to the Convention — did have the standing to press the issue.
But that brought me back to my prior re-evaluation of the Geneva Conventions, and the problems terrorists pose.
The Convention divides people into two categories: combatants and non-combatants. The terrorists slip back and forth between these two categories, embracing whichever more suits their needs.
Likewise, our own system of government divides enemies into two categories: combatants and criminals. And again, the terrorists don’t fit either definition fully.
They use military tactics, equipment, and large-scale use of force to obtain their goals, but they wear no uniforms, swear allegiance to no nation-state, and refuse to follow any of the rules of warfare. Likewise, they break numerous laws in the planning and commission of their attacks, but they are not truly criminals as we conventionally think of them.
This is why the Clinton Administration was so hopelessly inept in dealing with the rising threat of Al Qaeda. Probably based on the Clintons’ own innate distrust and dislike of the military, they saw the terrorists as a criminal problem, and threw lawyers at the problem. The World Trade Center bombers were arrested, tried, and sentenced. Lawyers were consulted at every step of Clinton’s anti-terrorist programs and actions, making sure that everything was fully in compliance with law covering criminal cases. Yeah, we got the guys who nearly blew up the World Trade Center in 1993, but we still had the Khobar Tower attack, the African Embassy attacks, the near-sinking of the USS Cole, and 9/11.
Likewise, a purely military approach won’t work too well, either. That’s what the Russians did with the Chechen Islamists, and it still led to a school massacre.
The solution is, most likely, a blend of both methods. The Bush Administration has done a bit of this, with considerable success. They’ve focused mainly on the military aspect (I suspect partly because it’s worked so well, partly because the legalistic approach of the Clintons left such a bad taste in their mouths), but the legal side has done all right.
The Supreme Court’s ruling, as I grasped it, was not a complete smackdown of the Bush administration’s policy. It merely said that absent a Congressional act establishing a new policy, the detainees had to be brought to justice under a previously-established standard, not an ad-hoc one cribbed together out of a couple prior existing systems. And it looks like Congress just might be willing to do this.
But that doesn’t change the underlying problems with the Geneva Convention. As it stands now, any signatory nation is obligated to treat any enemy as a legitimate combatant, regardless of what that individual does. In essence, there is no “stick” to coerce them to act honorably; they will get the “carrot” regardless of their actions.
I’ve heard a lot of discussion about the consequences of this decision, and they bother me. Some former military have said that they foresee the issue becoming moot, as we will suddenly stop “capturing” so many prisoners. The fatalities will rise markedly.
This, in my opinion, is an entirely predictable response, and one that must be averted. On a purely pragmatic basis, prisoners are a truly valuable source of intelligence — “dead men tell no tales.” But on a more philosophical one, inculcating our armed forces in the belief that showing any shred of mercy to the enemy is a soul-killing move, and we live in an age of the true “citizen soldier” — the line separating the service member from the civilian populace is growing thinner and thinner, especially in the huge progress made in telecommunications. Soldiers no longer need to wonder what’s going on back in “the world” — they can turn on the TV or (more and more frequently) boot up the computer and see and hear exactly what we ourselves see and hear in the safety of our own homes. Waiting weeks for mail call is history, in the age of such instant communication as cell phones and e-mail and instant messaging.
So, what to do about this dilemma? It’s a large problem, and needs a large answer.
I say (as I said before) that we need a new international convention. The US will use its clout as the world’s only hyperpower and work up an outline of a new international convention, this one outlining the treatment of terrorists and other irregular combatants. We then will invite all the other nations of the world to come and hammer out the details, then — hopefully — to sign on with us.
But this convention should not be in Geneva. The land of secret bank accounts, watches, chocolate, and cuckoo clocks is too far removed from the harsh realities of the modern age, and the horrors it can inflict. We need to meet in a place that has been touched by the horror of terrorism, where the delegates will not be able to escape the awesome burden placed upon them.
New York and Washington are out, because they are simply too big and too cosmopolitan for such ugly matters. Instead, bring the world’s delegates to Shanksville, Pennsylvania, where United Flight 93 came to earth. Or Beslan, Russia, where Chechen Islamists took over a school and ended up massacring hundreds of people — over half of them children. Or even Jerusalem, scarred by terrorism for far too long.
For the legally-minded, this could be considered an amendment to the Geneva Conventions. But make no mistake about it — the age of the Conventions is long past, and we face an enemy that not only refuses to abide by it, but forces us to handcuff ourselves to its outdated rules and policies. It simply doesn’t fit today’s circumstances, and it needs to be changed — or done away with completely.