I am not a lawyer. Never attended law school, never had any legal training, just a layman’s fascination with it. I think it was partly shaped by my early exposure to “The Paper Chase” (which also gave me a lifelong crush on Clare Kirkconnell).
In that film and TV series, John Houseman’s character taught Contracts. He stressed the necessary elements of a legally binding contract, and three terms stuck with me to this day: Acceptance, Consideration, and Meeting Of The Minds.
Acceptance: Both parties to the contract must agree to be bound by the contract. If one party doesn’t sign, then they are under no obligations. I can sign all the documents saying you owe me five thousand dollars, but unless you sign it too, it’s worthless.
Consideration: There must be a benefit to both parties for a contract to be enforceable. “I agree to give you five thousand dollars, and you do nothing” is not legal.
Meeting Of The Minds: Both sides must agree with the terms of the contract, and share a common understanding of them. If you sign an agreement to give me five thousand dollars, you can not then give me that in Monopoly money or Confederate currency or even Canadian bills.
The principles behind contracts cover far more than arrangements between two people. It’s the bedrock for all agreements everywhere. Even treaties.
Two series of treaties have been much discussed in recent times. In both cases, a solid argument can be made that they do not bind the United States. But in both cases, that seems to be irrelevant.
The Kyoto Accord on greenhouse gases was negotiated in the late 1990’s. At the talks’ conclusion, President Clinton brought it back to the United States. In response, the Senate unanimously passed a resolution rejecting it. They said (and I agree with them) that it was grotesquely unfair. It put all the burdens on the Western nations, while exempting many third-world states that generate considerable pollution. Had its shapers’ intent been not to help the environment but economically cripple the West and give huge advantages to the rest of the world, they could not have done better.
Clinton, wisely deciding to avoid a futile fight, never submitted the treaty for approval. And it remains impotent (thank heavens) in the United States.
But that doesn’t stop a lot of people from calling on the US to abide by the terms of the agreement. The concerns that united the Senate almost a decade ago are never brought up. Instead, the hysteria is whipped up, apparently in hopes that sheer volume will drown out legitimate concerns.
And the fact that there was never any Acceptance on behalf of the United States is ignored.
Likewise, the Geneva Conventions on warfare were negotiated by the great powers after World War I. These covered conduct in times of war, as well as treatment of prisoners and the like.
These are often treated as great humanitarian efforts, an attempt to reduce the carnage and mayhem and inhumanity of war. There’s an element of that, to be certain, but there was something far, far more important at play.
The Geneva Conventions were a simple quid pro quo of terror: “we agree not to do certain things if you agree, too.” Every nation that signed on did not do so out of compassion, but out of a desire to protect its own soldiers and civilians. The idea was that “we won’t do these horrid things in war as long as you agree to the same.”
Ironically enough, the number of conflicts fought between Geneva signatories who actually honored the pacts have been damned few. During World War II, Nazi Germany actually made a more than token effort towards abiding by them, and accordingly the Allies also behaved themselves, for the most part. Japan, on the other hand, did not.
The only other example I can think of would be the Falklands War, between the United Kingdom and Argentina.
Nowadays, though, the Geneva Conventions are seen as only applying to the signatory nations, and binding in all cases. In Iraq, the allied coalition is routinely fighting enemies who have a cursory knowledge of the Conventions — just enough to know how to exploit them to their best advantage. In response, though, we are expected to treat them just as if they were honorable soldiers representing a nation that had signed and abided by the Conventions themselves. I’ve lost count of how many “war crimes” the terrorists/insurgents/scumbags violate on a daily basis, but it’s grotesque.
You want a few? OK. Not wearing uniforms. Not abiding by a military hierarchy. Use of civilian structures like hospitals and mosques for military purposes. Deliberately targeting civilians. Use of chemical weapons. Torture and execution of prisoners. Mingling among civilians for shelter. Use of civilians as shields.
So, these terrorists/insurgents/scumbags are essentially using the Geneva Conventions as checklists to see what they can get away with. But when we catch them, they are to be accorded the full protections of an agreement that they not only never accepted, but willfully and deliberately flout. In Contract terms, there is no Agreement and no Consideration here. They are gaining the full benefit of the Conventions without accepting the burdens, while we are bound to it despite its not being accepted by the other party.
Those who repeatedly harp on this being an “illegal war” are just proving how little they actually know about law. And if a non-lawyer like me can see that, why the hell can’t more people?
