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Time to declare our independence from the Geneva Convention

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.


Comments (25)

As long as the subject is f... (Below threshold)
Mac Lorry:

As long as the subject is fairytales, the place to meet is the Magic Kingdom. If nothing else, you would likely get more attendance particularly if the U.S. pays all the expenses for the dignitaries and their families to attend.

Along these lines I am remi... (Below threshold)
Drew E.:

Along these lines I am reminded of the words Kurt V. wrote in "Cat's Cradle" which is to often overlooked because of "Slaughterhouse 5"

"We are gathered here, friends," he said, "to honor lo Hoon-year Mora-toorz tut Zamoo-cratz-ya, children dead, all dead, all murdered in war. It is customary on days like this to call such lost children men. I am unable to call them men for this simple reason: that in the same war in which lo Hoon-year Mora-toorz tut Zamoo-cratz-ya died, my own son died.

"My soul insists that I mourn not a man but a child.

"I do not say that children at war do not die like men, if they have to die. To their everlasting honor and our everlasting shame, they do die like men, thus making possible the manly jubilation of patriotic holidays.

"But they are murdered children all the same.

"And I propose to you that if we are to pay our sincere respects to the hundred lost children of San Lorenzo, that we might best spend the day despising what killed them; which is to say, the stupidity and viciousness of all mankind.

"Perhaps, when we remember wars, we should take off our clothes and paint ourselves blue and go on all fours all day long and grunt like pigs. That would surely be more appropriate than noble oratory and shows of flags and well-oiled guns.

"I do not mean to be ungrateful for the fine, martial show we are about to see - and a thrilling show it really will be..."

He looked each of us in the eye, and then he commented very softly, throwing it away, "And hooray I say for thrilling shows."

We had to strain our ears to hear what Minton said next.

"But if today is really in honor of a hundred children murdered in war," he said, "is today a day for a thrilling show?

"The answer is yes, on one condition: that we, the celebrants are working consciously and tirelessly to reduce the stupidity and viciousness of ourselves and all mankind


Hmmmm.As long as a... (Below threshold)
ed:

Hmmmm.

As long as any such treaty allows for and even requires reciprocal treatment of prisoners. I.e. you torture ours and we'll skin yours alive.

Quite frankly I think all such agreements are utterly worthless. There are Iraqis who were involved in raping American POWs in the first Gulf War who've never been brought, to my knowledge, to justice.

That alone makes the GC and all such treaties utter crap.

As for Age...hmmm..today is... (Below threshold)
Drew E.:

As for Age...hmmm..today is about a docuument written 230 years ago...so much has changed..heck England is our friend...I think this document does not reflect current reality and should be ..well put down the memory hole...

I agree anything written befor 9/11 just doesn't understand how really really afraid we are now...my main thought today is that a dirty bomber will slip in to Coors Field here in Denver and unleash horror on those of us who just wanted to watch baseball and see fireworks...
Jay it is too bad you were born at the wrong place during the wrong time..
You know in Russia during the 30's they had the security thing down...oh well...

It doesn't apply. Period. ... (Below threshold)
Mitchell:

It doesn't apply. Period. End of sentence.

If you are a Supreme Court justice who enjoys the whimsy of flying off on legalistic tangents, the Treaty is a play thing you wish to open and to fiddle with.

The rest of us who don't worry about meeting justices at international legal conventions to demonstrate our wisdom and moral superiority have a hard time understanding this one.

Maybe the solution is: hey, Justices, get out of the library a little and lay off the law books for a taste of reality.

Gee, Drew, are you confusin... (Below threshold)
Jay Tea:

Gee, Drew, are you confusing the Declaration of Independence with the Constitution? The Declaration was a one-shot deal, addresssing the realities of the present situation. A better parallel for constructing how things are to be done on a day-by-day, ongoing basis would be the Constitution -- and we've amended that one 17 times since.

J.

The Declaration was NOT a o... (Below threshold)
Publicus:

The Declaration was NOT a one-shot deal; it did deal with immediate circumstances, but it ALSO outlined American ideals. For example, "all men are created equal and endowed by their Creator" with certain rights, etc.

The Constitution is a practical blueprint for a government that (one hopes) will protect our rights and make those ideals real.

The author simply assumes t... (Below threshold)
K:

The author simply assumes there is no doubt that "any signatory nation is obligated to treat any enemy as a legitimate combatant, regardless of what that individual does".

But there is doubt. That is precisely the problem. While Reagan was President he refused to send a treaty to the Senate which would have extended the conventions to groups like Al Queda. He gave clear reasons. Clinton and others had ample time to back it if they agreed. None acted.

Congress did not attempt to fix it by legislation either. So exactly where is evidence that we ever thought we had extended the treaty to this new type of prisoner?

Otherwise I agree with the ruling. Congress does have authority to pass laws regarding the matter and I hope they do. Bush should have been frank and prompt in requesting it.

Drew E:As for Age... (Below threshold)
MikeB:

Drew E:
As for Age...hmmm..today is about a docuument written 230 years ago...so much has changed..heck England is our friend...I think this document does not reflect current reality and should be ..well put down the memory hole...

JT:
Gee, Drew, are you confusing the Declaration of Independence with the Constitution?

I thought for a minute there that Drew E was about to argue that we (the U.S.A.) should return to being an British colony...

- MikeB

The Geneva Convention is si... (Below threshold)
Justrand:

The Geneva Convention is similar to the rules of boxing. When both sides are held to them then they have some effect. But when only ONE side is held to them...or CAN be held to them, then they are far worse than useless.

Take Olympic Boxing, where the rules are the most stringent. Now imagine that one boxer (the AMERICAN boxer, for example) is held to Olympic rules. While the OTHER boxer (the Syrian boxer, for example) brings a bicycle chain and brass-knuckles into the ring.

This is EXACTLY what is happening vis-a-vis the Geneva Convention these days.

Only a STOOOPID "boxer" would restrict himself to "Olympic Rules" while the other "boxer" uses brass-knuckles. I'm tired of us being STOOOPID!

Has the US ever faced an... (Below threshold)
BC Monkey:

Has the US ever faced anyone who has abided by the conventions?

If not, what use are they?

How about naming the new accord after the two US servicemen slaughtered by the Jihadists in Iraq last month?

The problem is not the Gene... (Below threshold)
Mark L:

The problem is not the Geneva Conventions -- the problem is that we are not sticking to them.

The Conventions have provisions for illegal combatants. You are allowed to kill them rather than accept their surrender. Once we start doing that much of the inequity of the Conventions go away.

As far as I know, the Unite... (Below threshold)
stan25:

As far as I know, the United States and its Allies are the only countries that have ever abided by the Geneva Convention, in all of its incarnations. Germany, Japan, North Korea, North Vietman, China and the terrorists have not. I think that the most egregous offender was Japan. They killed our soliders, sailors, Marine PoWs and civilian detainees, whenever they felt like it. To this day, there has never been a true accounting from Japan for all the war crimes that they committed during WW2 and there will probably be none ever.

Correct MarkL: the uninten... (Below threshold)
Mitchell:

Correct MarkL: the unintended consequence of SCOTUS meddling may be more quickly dispatched terrorists captured on the battlefield.

And, good riddance to them. It's within the Geneva Conventions, that sacred document. It is more highly-regarded now than either of our Declaration of Independance or Constitution, apparently.

The Genveva Conventions are... (Below threshold)
Proud Kaffir:

The Genveva Conventions are fairly clear: if you want its protections, you have to abide by its rules. Even a nonsignatory can gain its protections simply be adhering to the rules. Those who don't follow the rule can be summarily executed when captured, as was the case in WWII with German soldiers captured out of uniform.

This was meant to protect civilians, so combatants and civlians can be clearly distinguished. By extending protections to terrorists regardless of how often they disregard any of the rule of combat, we are endangering civillains.

SCOTUS managed to extend Article 3 protections, intended for captives of civil wars, to the terrorists by a linguistic slight of hand. They reinterperted the words in Article 3 and declared the Article self-sustaining. They state that a stateless enemy can commit as mnay atrocities as they want and are still entitled to protections, something to which no one in this country ever agreed.

Protocol II, with was to extend these protections to guerrillas/ terrorists, was rejected by Jimmy Carter and Ronald Reagan. Now SCOTUS has acted as Congress and CinC, signing the Protocol and ratifying it.

Maybe the solution to the G... (Below threshold)
Gienn:

Maybe the solution to the GC problem is to shoot all the terrorists in the head a couple times. After all the Brits had a saying about pirates that "They seldom give trouble having stretched hemp" And we used to hang horse theves as well

The Supreme Court is tellin... (Below threshold)
Justrand:

The Supreme Court is telling us: KILL 'EM.

'Cause if you lock 'em up...they're gonna LAWYER UP!!

How incredibly HUMANE of the bleeding heart libs on the Supreme Court!

"The Conventions were writt... (Below threshold)
Tim in PA:

"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. "

... and anyone fighting in any other manner was treated as what they are - barbarians. The problem isn't that we're following the conventions, it's that we AREN'T, in applying it to exactly the sort of dirtbags it was meant to exclude and deter.

"As far as I know, the Unit... (Below threshold)
DCE:

"As far as I know, the United States and its Allies are the only countries that have ever abided by the Geneva Convention, in all of its incarnations. Germany, Japan, North Korea, North Vietman, China and the terrorists have not."

Germany did abide by the Geneva Convention in both World Wars. There were isolated events where German troops, primarily SS troops, violated the Geneva Convention, but as a whole the Germans followed the rules as laid out by them. Japan, North Korea, (North) Vietnam, and China are not signatories to the Convention.

Let me modify DCE's comment... (Below threshold)
Mark L:

Let me modify DCE's comment about Germany's compliance with the Geneva Conventions. It *generally* observed them with prisoners from the US, UK (including Commonwealth allies), France, Benelux, Scandinavia, and even Poland.

It did not offer Geneva Convention protections to Soviet prisoners of war, because the Soviet Union was not a signatory to the Conventions. No tickee, no laundry.

The Geneva Convention is no... (Below threshold)
jpm100:

The Geneva Convention is not as broken as our Judicial System.

"The Declaration was NOT a ... (Below threshold)
jpm100:

"The Declaration was NOT a one-shot deal; it did deal with immediate circumstances, but it ALSO outlined American ideals. For example, "all men are created equal and endowed by their Creator" with certain rights, etc.

The Constitution is a practical blueprint for a government that (one hopes) will protect our rights and make those ideals real."

Yes, some of those rights is the right include the right to life & liberty. And when someone threatens to violate those rights of my family, my country and myself to preserve them I can neglect some of theirs.

OMG! Jay, you are a total ... (Below threshold)
blastmaster:

OMG! Jay, you are a total turd-brain. What are you doing to this otherwise fine site with your totally idiotic, self-indulgent rants?

Well, maybe nobody's readin... (Below threshold)
Bibblesnæð:

Well, maybe nobody's reading these comments any more; it has been a whole day, after all. And if anybody here does read mine, I fully expect to have all knds of verbal abuse heaped upon my sorry head. Well, so be it.
These are the United States of America. I was born here and reared here. It's my homeland and I love it. It's a great and special place we live in here. But it isn't great or special because of divine right or manifest destiny. It's greatand special because of the great and monumental ideals we try to (and far too often fail to) live up to.
We're great and special only because we try to be decent and honorable; because we try to respect all people--even those who don't deserve it.
I don't argue that terrorists deserve mercy or decent treatment. If you really want to know the truth, I don't know that I always deserve mercy or decent treatment. I'm a sinner, too, and I've done some awful things in my life.
But we should be merciful and decent to others anyway--even to terrorists. We do this not because they always deserve it, not because they have always earned it, but because we should try to be better than they are. We owe it to ourselves to strive to make ourselves better people.
This puts us at a disadvantage, as we're fighting some people who have no compunctions about slaughtering helpless people. But if being the United States of America means anything, it means that we should try harder. It puts us at risk. It puts me at risk. But if you gave me a choice between dying as an American living in an America that seeks to be nobler, kinder, more generous and just generally better on the one hand, and on the other, living as an American in an America where we're willing to give into our worst instincts and treat some other, admittedly loathesome, people abominably in order to make us just a little safer, then I will choose the former without a second thought.
In short, I don't want us to treat terrorists well because I think they're decent people; I want us to treat them well because I want US to be decent people.
I think we owe ourselves that much.
And now, let the attacks upon my character, intellect and courage--or alleged lack thereof--begin!

Where's Osama?... (Below threshold)

Where's Osama?




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