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Screw the Geneva Convention, Part 2: Where do we go from here?

The Geneva Conventions have been around a long time and, despite some serious failings, for the most part they've done good for the world. Some might argue that diminishing the brutality of war might have prevented some from ending sooner out of sheer revulsion by the participants, but I think overall they've been beneficial. But they are terribly outdated.

The Conventions were passed in a simpler time, when wars were much more clearly defined. One nation would attack another, and then they'd fight back and forth until one side won or both sides got tired of fighting. But it retained the "personal" touch -- it was one government or head of state against another, and there was a certain element of peerage involved. The good guys dressed one way, and the bad guys another, and you could tell them apart at a glance.

Nowadays, especially where we (the United States) is concerned, that just isn't the case. It's been over 60 years since the US was openly attacked by another nation, and I don't see it happening any time soon. We have evolved from being one of the world's great superpowers to the sole hyperpower, and no one dares openly assailing us. Since Viet Nam, every single time we have been in a conflict, we have had the luxury of choosing the when and where of the battle, and have decisively crushed our opponents each and every single time. "Don't tread on me" has been replaced with "don't even think of fucking with us."

But that doesn't mean that everything is just sunshine and roses. We are still engaged in pitched conflicts around the world, but they don't qualify as "wars." We don't have a unified enemy under one flag in one uniform with one capital. We're fighting civilians now, waging terrorism and guerrilla warfare.

That didn't fit any of the models we had. The closest fit we had was criminal gangs, so we treated them as such. Clinton especially treated terrorism as a law-enforcement problem, and threw cops and lawyers at it. It had it's moments of successes, but failures as well. We locked up the people behind the first World Trade Center bombing, but that didn't prevent 9/11.

The problem is that while the terrorists commit crimes, they aren't criminals. Criminals' motive is personal gain, for the most part, and have a fairly healthy sense of self-preservation. Terrorists are idealists, eager and willing to lay down their lives to kill us and ours for their cause. Police and lawyers aren't equipped to fight that kind of enemy.

Terrorists fall into a gray area between criminals and soldiers, having elements of both but being fully neither. And there is nothing in the Geneva Conventions that covers such situations.

So it's time for a new Convention, where the United States can outline just how it will deal with such people. And this one shouldn't be held in Geneva. Geneva is a resort community -- people go there, go to the spas, eat chololate, ski, and what not. We need this new convention to be somewhere that has seen terrorism up close and personal, where the wounds are still fresh and the delegates will be constantly reminded of just what this new enemy is. My suggestions are places such as New York City; Fallujah, Iraq; Beslan, in Russia; or perhaps Shanksville, Pennsylvania, where Flight 93 fell to earth.

Perhaps we can start holding countries accountable for the conduct of groups within its borders, much like we did in Afghanistan. An international endorsement of the Bush Doctrine, which says that if you help our enemies, you declare yourself our enemy. Nations that fund, give shelter to, or otherwise support terrorist groups will be made to pay the price for such actions.

The United States Constitution is probably the most perfect instrument for governing people, but it's founders knew it would have to change and evolve over time. That's why they put in an amending process, and we've used it 17 times since then. (The Bill Of Rights was passed at the same time.) The Geneva Conventions simply don't apply to these current circumstances, and we need some new rules.

J.


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Comments (20)

I've read (though, sadly, c... (Below threshold)

I've read (though, sadly, can't find where) that the Romans saw two types of war -- war between states, and war against criminals (pirates, bandits, etc.). While ransom and quarter was given in wars between states, they were not in wars against criminals.

I think we need to adopt a similar standard.

"Terrorists fall into a ... (Below threshold)
ClusterChuck:

"Terrorists fall into a gray area between criminals and soldiers, having elements of both but being fully neither."

As a soldier, I find that quite offensive. Terrorists are not between criminals and soldiers. They are, at best, criminals themselves. The majority folks I know who have committed a crime (and thus, a criminal) rate a lot better than these terrorists. They are far more tolerable, not to mention tolerant.

Even though I have just com... (Below threshold)
Pat:

Even though I have just commented below that fighting civilians can have protection under the Geneva Conventions (Article 4 A 6) like in the case of fighters in Faluja, your assesment of some failings of the GCs seems right to me: for some of the fights there is no clear rule of the law applicable. Which gives to much leeway for adverse interpretation and thus is a danger for the fighting troops in itself. Amendsments are needed to cover that.

However, such new conventions or amendments to me do not appear to be the right place to talk about accountability for supporting terrorists. This would be more a job for the International Court of Justice, which sadly the US do not ackowledge (though I understand some of the reasoning behind that).

It's scary knowing that the... (Below threshold)
Joe:

It's scary knowing that these things happen and that we have to deal with them.

Not sure why America needs ... (Below threshold)
See-Dubya:

Not sure why America needs to bind herself to a particular standard of conduct when fighting terrorists.

If we commit to tackling the problem according to certain rules, the terrorists use those against us, eg attacking us from mosques and hospitals.

More importantly the reason we can have a Geneva convention is that we can breach the treaty if the other side does. Terrorists a: lack the legal status to agree to any sort of treaty and b: almost by definition are already in violation of the Geneva convention and probably of whatever rules we are willing to put on ourselves.

So it seems that in a given conflict either the GC controls or it does not; if it does not, we are free to proceed as we think best and can write (and alter, when we need to) our own rules of engagement internally--no need for an international convention.

Actually the conventions d... (Below threshold)
Peter:

Actually the conventions do a pretty fair job of laying down rules for dealling with the various differing classes of people we're fighting in Iraq, Afghanistan and in the shadows elsewhere.
The shortcomings lie in how the conventions apply to the countries that support them.
The foreign fighters are mostly, it seems, coming over the borders with Iran and Syria. To what extent is this with the cooperation of the Syrian and Iranian governments? To what extent can we retalliate?
I actually suspect that the answers to these questions are more likely to be found in America's political decisions than in international agreements.

"Don't tread on me" has bee... (Below threshold)
LJD:

"Don't tread on me" has been replaced with "don't even think of fucking with us."

That statement brought a smile to my face. However it is precisely the requirements of the convention, and bullshit media coverage, that leads terrorists to think that they can get away with doing just that: fucking wiith us.

The G.C. doesn't apply to anybody BUT us. Can anybody name a single country where if we were at war with them, they would honor the provisions of the G.C.? I'll give you a hint, it's NOT North Korea, Iran or any middle eastern country, Russia, or China. Maybe France?

"and have decisively crushe... (Below threshold)
Oz:

"and have decisively crushed our opponents each and every single time."

perhaps you forgot Viet nam or Somailia?

The geneva convention provides a framework for civil society in the world. When we do not abide by it we become as bad as our enemies. When we kill innocents, destroy civilian infrastructure including hospitals, sewers, water supplies we lose any moral high ground that we were using to justify the war in the first place. Yes war is hell and some bad things happen but it does not make us a better people by becoming butchers in the process. We also have to assimilate these soldiers back into our communities. Just as we do not want psycopathic killers running around our comunities, we do not want to create a generation of our soldiers who we have let lose all of their humanity as they will become our teachers, school bus drivers, doctors, cops, and neighbors. We must give this respect to criminals as well or we lose the ability to prove ourselves innocent should we be falsely accused. People should not be tried at the end of the barrel of a gun.

Oz - The point here is not ... (Below threshold)

Oz - The point here is not to not have rules or morality, but to adjust the governing conventions to take account of new realities of war. There's nothing totemic about these particular rules.

ClusterChuck, please accept... (Below threshold)
Jay Tea:

ClusterChuck, please accept my sincerest apologies. I absolutely meant no disrespect to you or any of our armed forces. I meant that the people we are fighting in Iraq are LEGALLY "in the gray area" between criminals and combatants. Yes, absolutely they are committing crimes, but their motives are not those we normally ascribe to criminals, and it simply isn't effective to deal with them as simple criminals.

J.

Pat, I cheerfully defer to your greater knowledge of the Geneva Conventions. I was hoping that by getting the ball rolling, those with greater knowledge of the matter would chime in, and I am delighted to see it worked so well.

Oz, you cut out the part where I said "SINCE VIET NAM" at the beginning of that sentence. And I didn't count Somalia because that didn't start out as a battle, but as a humanitarian effort. A bit of a weasel, but I think I can get away with it.

Have to agree with crank. ... (Below threshold)
LJD:

Have to agree with crank. We're not going to start raping and pillaging, just because. However, we are also not going to have the media, the U.N., the Frenchies, or anybody else but our JAG reviewing the actions of our troops under the UCMJ.

I don't know what you're talking about on Viet Nam or Somalia either. We never lost a battle in Viet Nam. I thought it was common knowledge that it was the politicians, not the soldiers that screwed it all up.

..and Somalia? I believe the body counts were many times higher for the Somalis. You need to also remember we were there on a humanitarian mission, not to annihilate the militia.

In both cases, policy failed and we learned from it. I suppose the measure of "decisely crushing our opponents" all depends on what you believe the objective was.

Pat, I don't think your cit... (Below threshold)

Pat, I don't think your citation of Article 4 A 6 proves what you say it does. To wit: "6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war. "

(a) Is Fallujah indeed "non-occupied territory", especially given the current status of Iraq as a whole?
(b) What's "spontaneous" about the Fallujah insurgency that's lasted at least 8 months?
(c) Again, if it's been happening 8 months, what's this about not having enough time to form into regular armed units?
(d) Some of them carry arms openly, I'm sure, but which of them respect the laws and customs of war when they're shooting from a mosque?

I hope you have another definition to cover these Fallujah fighters as lawful combatants, because the clause you cited sure doesn't do the job. (I also take issue with the readiness to classify the wounded as POWs, but that's for another time.)

This plays to Jay Tea's point, though: the current GC rules just aren't built for this type of warfare. I do disagree with Jay Tea on this point, though: why generate new rules when the barbarians aren't going to follow them? Wouldn't any new rules of warfare just tie the hands of the civilized folks?

- I'm always amused when I ... (Below threshold)

- I'm always amused when I watch the efforts to parse the Vietnam war, looking at it as people who were not yet alive in those times are forced to do, through very narrow and incomplete glasses. I always notice that when the rants of "We shouldn't have been there" are put forth by the left, the fact that JFK was the one who put us there in the first place is somehow never mentioned. Almost everyone who comments on that war today has little or no "feel" for the thinking of the time, or the policy effects that events like the Cuban missile crisis and the Castro/Kruschev adventure had on American leadership....

- The Bay of Pigs fiasco didn't just happen in a vacuum because JFK was pissed at Castro. There were strategic reasons that he and the administration felt compelled to follow certain very hawkish actions. The favored mantra of the time was "The dangers of creeping world wide Communism". Russia, not satisfied with undependable early version MRBM's, decided to move them to within 90 miles of our shores in response to our deployments in Greece of the same types of weapons just months before. Later you had the conflicts in the middle east including the "Three day war", a very real struggle between ourselves and Russia regardless of by who and where it was fought....

- The point is that a good argument can be made that Vietnam was actually a success because whether or not we were able to free the south and set up a Democracy the overall effect was to aid in putting the breaks on Russia and China. The deal was sealed with the worldwide dispersion of atomic warheads/nuclear subs during that same time period which established "assured mutual destruction" between ourselves and the Communist block countries and more or less forced the status quo. So in that sense maybe we lost the diplomatic war in Vietnam, but as ClusterChuck posted we never actually lost a "battle" in that conflict and in some ways we won a much larger and more important struggle. After we left its true the south came under communist rule, but the spread of communism world wide came to a halt...

- The same thing can be applied to the conflict in Iraq. Its entirely possible that we'll be successful in suppressing the terrorist efforts, hold the elections, and rebuild the country. It may well end up in the same "model" as Korea, one of the conflicts the left NEVER wants to discuss. Or we may feel we are done after all of that is completed and leave, and as soon as we do it could dissolve into a three way civil war mess. Thats a very distinct possibility. I don't feel that will say anything to our "success". If the reason we take these actions is to stop and deplete terrorism and its ranks then we will have done that.....

- Tying our hands behind our backs by some self imposed "rules" is neither smart nor practical. I'm simply not prepared to ask our military to put themselves in harms way without also giving them the license to do whatever they must to deal with the realities of the enemy and his tactics.....

My personal view is that th... (Below threshold)
Omni:

My personal view is that the only special rules we need to handle terrorists would be along the lines if, "how can we be sure they die with the same terror and agony as their innocent victims?"

Sorry if anyone finds that to be upsetting; I'm somewhat to the right of Attila the Hun... of whose rule it was said that a virgin could ride naked with bags of gold from one end of his empire to the other, with both her gold and her virtue intact.

The Geneva Convention Proto... (Below threshold)
Anne:

The Geneva Convention Protocol 1, Article 37 protects the Marine in question - something many people like to leave out whilst touting the other 200 clauses and exemptions (all 200 of which, ironically, dot apply to the dead terrorist because of Protocol 1 Article 37).

The Miseducation of American Media. *shrugs*

I've heard people bemoan Am... (Below threshold)
paul:

I've heard people bemoan America's failure to adhere to the Geneva Conventions, which people hold "sacred". Can these people think of any conflict in which America's adversaries were enthusiastic upholders of these conventions? The Japanese? The Koreans? The North Vietnamese?
Do they notice any particular concern for "human rights" among the jihadis in Afghanistan or the Middle East? The convention applies so one-sidedly that adherence to it should be made contingent on a degree of reciprocity.
Such people cite Abu Ghraib, which provides a useful source of anti-American hand-wringing, but in my view, is hardly significant compared with standard practice in most Arab jails. For those unlucky enough to be incarcerated in most of the Middle East, the human sex pyramid of Abu Ghraib would probably come as light relief.
These people should ask whether they would rather be a prisoner in Guantanamo Bay, or a humanitarian worker fallen into the hands of Islamic groups in Fallujah. Liberal hypocrisy would not survive this test.

Yeah, the Convention doesn'... (Below threshold)
Tim in PA:

Yeah, the Convention doesn't even apply to most of the jihadis... but most of our troops are going to want to generaly follow it regardless.

Our fighting men take a lot of pride in the fact that they don't act like barbarians, yet still manage to kick ass. Even if we dropped the Geneva Convention, I'd be in favor of certain codes of conduct. Despite the efforts of our enemies in the MSM, we can still illustrate through the actions of our troops that we are in fact the good guys.

99.9 percent of the time, you aren't going to find our troops committing the really odious violations of the Convention anyways.

I think the thing we really need to do is clarify exactly those sorts of situations that we are facing in Iraq; how to handle barbarians. How to handle people who play possum, kill noncombatants with glee, and use sanctuaries for cover. If that means we need to shoot all of the dead and wounded combatants who aren't in uniform, then lets do it.

Fighting smartly doesn't necessarily mean fighting dirty; we need a good dose of common sense.

The later Protocols I and I... (Below threshold)

The later Protocols I and II address some of these issues. The U.S. however has not ratified them.

Reference Guide to the Geneva Conventions

- We can now add waving the... (Below threshold)

- We can now add waving the white flag and then just as our troops get close enough to start the capture suddenly opening up full bore and attacking. (Just yesterday). These bottom feeders aren't barbarians...They're total bonifide lunitics, something akin to the Japanese Kamakazi's of WWII. A few of them that survived were tried as war criminals and hanged. Since the Jihadists refuse to act in any measurably civil way they have no claims to gaining the temperence and mercy of our troops. By the same token I agree we should follow a sane approach as nearly as we are able too. War does enough psychological damage to our troops as it is, and we should be the good guys whenever possible. But not at the expense of American lives.....

@ slarrow and Jay Tea: I kn... (Below threshold)
Pat:

@ slarrow and Jay Tea: I know that the discussion has moved on, but I was offline due to moving to a new place for 5 days and just want to take the chance to get back to your comments. Will mail it to you too, because it is interesting to discuss these things (from my point of view anyway and it seems from yours too).

Slarrow asks, if the rules of Article 4 A 6 of the GCs does cover the situation at hand. The questions are
a) unoccupied territorry: this is of course a legaly tricky issue at best. As far as I know the Allied forces have "given up" on Faluja for quite a while and were more or less retaking the city. At least that was, what I found in reports from very diverse media. Furthermore it seem that in the absence of other forces, by it regular Iraqy or Allied, some kind of Taliban regime had been built up with rules for the society in print at numerous houses and sites (which for my personal taste makes it clear, that hard and tough cleaning of this environment was needed and given, thanks to American and Iraq forces!). Therefore I believe the city can be considered as "unoccupied".
b) spontanous: of course the insurgence in Faludja was several month old and there had been numerous fights before. But the encircling of the city and the attack at large were relatively new. hence if the wounded were citizens of the city, they could well claim that they picked up weapons to defend themselves and their city. It would have to be proven, that it was not so before claiming that they were not protected under GCs ruling of this article.

In addition (I checked and learned more myself in the meantime, never a failure to read the law in toto before opening my big mouth), there is a new and extended definition of the combatant status of the wounded in the Mosque in the younger Protocol I, Article 44, Subarticle 3:
3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

(a) during each military engagement, and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 (c).

The last phrase does also contradict the opinion of Anne with her reference to Article 37 (unless she can prove that the person shot was only pretending to be wounded).

I believe that this settles the issue, if they were combatants.

If still in doubt, Article 45 would apply:
Art. 45. Protection of persons who have taken part in hostilities

1. A person who takes part in hostilities and falls into the power of an adverse Party shall be presumed to be a prisoner of war, and therefore shall be protected by the Third Convention, if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf by notification to the detaining Power or to the Protecting Power. Should any doubt arise as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status and, therefore, to be protected by the Third Convention and this Protocol until such time as his status has been determined by a competent tribunal.

Only if it can be proven that the fighters were mercenaries do the fail to be protected by the GCs. but of course this would have to be established first.

Anyway, like I said before, I do believe that in this adverse environment and critical situation and after the experience of persones feigning wounds or dead in order to attack, the Marine did not commit a crime.

Cheerio
Pat




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