Will Terrorism Rewrite the Laws of War?
After crossing the Delaware and winning the Battle of Trenton on Christmas Day, 1776, George Washington famously ordered his troops to give refuge to hundreds of surrendering Hessian soldiers. "Treat them with humanity," Washington instructed his lieutenants, noting that accepting the German mercenaries as prisoners of war wasn't just the right thing to do, it might even sway them to abandon their British paymasters and join the American side in the War of Independence. "Let them have no reason to complain of our copying the brutal example of the British army."
For all the angry debate over how to treat prisoners captured since the Sept. 11 attacks — as "enemy combatants" not protected by the Geneva Conventions, or as prisoners of war entitled to the treaties' full safeguards — Washington's instructions highlight at least one thing the opposing sides can agree on: "The very idea of humane warfare in modern times started here in the United States," notes Scott Horton, an international law expert who is president of the International League for Human Rights.
"We set down the ground rules," concurs David Rivkin, a contributing editor at the National Review and a former Justice Department lawyer under Presidents Ronald Reagan and George H.W. Bush. "And the rest of the world followed."
That, of course, is of little solace to anyone who has seen photographs of detainees at Iraq's Abu Ghraib prison, such as those recently shown on NPR.org of Manadel al-Jamadi, who died there in 2003. (See link to "The Death of an Iraqi Prisoner" by John McChesney below.) While President Bush has repeatedly stated that "we don't torture," a series of internal White House memos and directives suggest that his administration has tried to redefine what counts as "torture" and find exceptions to the Geneva Conventions. Among them: a Justice Department memo that narrowly defined torture only as that which causes "serious physical injury," and another in which Attorney General Alberto Gonzales belittles the sort of humane treatment Washington advocated as "quaint" in the age of al Qaeda terrorism.
Yet as even a cursory examination of the history of the nation's laws of war shows, presidents from Washington to Reagan and beyond have long championed the idea of humane treatment of prisoners as a vital cornerstone of U.S. policy.
Lieber Code: Defining the Rules of Humane Warefare
The idea was formally codified in 1863, when President Abraham Lincoln signed General Orders No. 100. Also known as the Lieber Code, for the Columbia University law professor Lincoln assigned to create it, the orders expressly forbade Army troops from giving enemy troops "no quarter," which described the then-common practice of leaving the enemy's wounded to die on the battlefield and even killing those attempting surrender. The only notable exception: those specifically known not to have given quarter themselves.
Lincoln's orders also defined minimum standards for treating prisoners of war and explicitly outlawed all forms of cruelty — "that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions," reads the code. Distributed to thousands of Union troops in the field, the Lieber code was "the first modern military field manual," notes Ruth Wedgewood, a law professor at Johns Hopkins University who sits on the United Nations' Human Rights Committee. The code was groundbreaking "because it guaranteed the right of enemy soldiers to surrender and be treated humanely, which was no small thing at the time."
Auspiciously, it was followed not only by the Union soldiers, but by the Confederates as well. And it soon became a model for similar drives to codify the rules of war in Europe.
Geneva Conventions: World Agrees on Rules of War
Among those efforts was one taken up by a Swiss businessman named Henri Dunant. After witnessing the horrifying aftermath of a battle in Soliferno, Italy, Dunant founded the International Committee of the Red Cross in 1863 and soon organized an international conference on humane conduct during wartime. The result was the Geneva Convention of 1864, the first international treaty to set down rules governing the humanitarian treatment of soldiers wounded on the battlefield.
Proud of their handiwork in helping define the moral high ground in war, America's leaders quickly signed and ratified the treaties. And over the next 60 years, diplomats like Elihu Root, President Teddy Roosevelt's secretary of state (and fellow Nobel Peace Prize winner) pushed for worldwide adoption of Geneva's three succeeding conventions, as well as another set of international treaties called the Hague Conventions, which established limits on the types of force allowable in war.
The result was "a major evolution in the definition of what's allowable in war and who should receive protection," says Scott Silliman, a military law expert at Duke University.
Amid the increasingly brutal realities of war in the 20th century, the additional Geneva Conventions outlawed the use of chemical weapons and guaranteed the humane treatment of soldiers at sea, of prisoners of war and of civilians during wartime. The ruthlessness of the First World War, especially the often brutal treatment of prisoners of war, prompted the passage of rules defining acceptable interrogation methods, which barred "physical or mental torture, nor any other form of coercion ... prisoners of war who refuse to answer may not be threatened, insulted or exposed to any unpleasant or disadvantageous treatment of any kind."
After World War II, concerns over the treatment of civilian fighters — specifically members of the French Resistance and Yugoslavian Partisan movement during the war — prompted calls for protections for fighters traditionally accorded only to soldiers in conventional armies. So Article IV of the 1949 Conventions regarding prisoners of war added members of "militias," "volunteer corps" and "organized resistance movements," and established a four-fold test for their qualification:
a) That of being commanded by a person responsible for his subordinates;
b) That of having a fixed distinctive sign recognizable at a distance;
c) That of carrying arms openly;
d) That of conducting their operations in accordance with the laws and customs of war.
"If you do those four things, you're a POW," says John Hutson, a former Navy judge who is dean of New Hampshire's Franklin Pierce Law Center. "And when the war is over, you're repatriated and you can't be prosecuted for your soldierly acts."
Those who don't follow the rules, however, are considered war criminals who can be detained after the war and put on trial in front of military tribunals, a classification that President George W. Bush later applied to members of Afghanistan's Taliban, allowing the U.S. military to detain them indefinitely after the war there.
In addition to ratifying the Geneva Conventions, in 1950 the United States incorporated the rules into the Uniform Code of Military Justice, the laws that govern the nation's armed services, and into the Army's field manuals, which detail proper procedures for interrogating prisoners. Armed forces field manuals have since included language taken directly from the Conventions, such as that barring the use of "cruel," "humiliating" or "degrading" treatment, terms that some in the current Bush administration have sought to eliminate.
Reassessing Geneva: Giving 'Freedom Fighters' the Same Rights as Soldiers
Despite the 1949 treaties' worldwide acceptance, their rules did not address an increasingly common form of conflict: civil war and the armed struggles of liberation movements, most notably the Palestinians' fight against Israeli occupation.
By their nature, such conflicts typically transcend the boundaries of conventional warfare — and of the laws governing them. While the Geneva Conventions specifically protected uniformed combatants fighting under the "command and control" of nationalized armies, those fighting in liberation movements — often rag-tag groups, poorly organized and outfitted in minimal uniforms, if any at all — had no such protections.
So in 1977, amid pressure from nonaligned nations and the world's growing human rights community, two additional Geneva protocols were added to safeguard those involved in armed struggles for liberation from "colonial domination," "racist regimes" and "alien occupation," including both cross-border conflicts and internal civil wars.
Yet the notion that Palestinians fighting in the street of Gaza should have the same rights as American soldiers at war was anathema to some in the Reagan administration.
After the protocols' passage, Douglas Feith, the former defense undersecretary who served in the Justice Department at the time, famously described the 1977 Geneva protocols as "law in the service of terrorism." President Ronald Reagan, too, publicly criticized the protocols as dangerously blurring the line between legitimate combatants and war criminals, refusing even to send them to Congress for ratification.
U.N. Convention on Torture: The Last Word?
Still, the United States remained committed to the Geneva Conventions' core provisions. Congress also ratified the 1984 United Nations Convention on Torture, which outlawed torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted," and also banned lesser abuses, which were defined as any "cruel, inhuman or degrading treatment or punishment." The bans applied not just to prisoners of war, but to "all members of the human family."
The treaty specifically covers acts of torture and abuse "in any territory under its jurisdiction" — within its borders or under its protection. To address torture committed outside the country, Congress also passed parallel legislation: The Torture Victims Protection Act of 1991, which gave torture victims the right to bring civil claims against their tormentors in U.S. courts even if the crimes were carried out on foreign soil. The law led to scores of suits filed against war criminals living in the United States.
While Congress' Torture Act specifically sanctioned such rewards to victims of torture, it did not include those who had suffered the sort of "cruel, inhuman or degrading" treatment outlined in the U.N. Torture Convention. The distinction would later prove crucial to the current Bush administration's arguments that some government officials — specifically the Central Intelligence Agency's interrogators — aren't legally precluded from using coercive methods to question prisoners held overseas, as long as the tactics don't constitute torture.
To take advantage of this apparent loophole, one of a series of memos written by Bush administration officials after the Sept. 11 attacks offered possible defenses against criminal charges, in part, by narrowing the definition of torture. Justice Department attorney Jay Bybee's 2002 memo advised that "certain acts may be cruel, inhuman or degrading, but still not produce pain and suffering of the requisite intensity to fall within (the law's) proscription against torture," which he wrote "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death."
While the Uniform Code of Military Justice expressly bars armed forces personnel from engaging in such treatment, "the administration view is that the CIA (which is not a part of the military) is bound only by the restrictions against torture, not against treatment short of that," says Silliman, the Duke Law Center scholar.
That, he notes, is why Vice President Dick Cheney has recently pushed members of Congress to exempt the CIA from a proposed law that would add restrictions against "cruel, inhuman or degrading" treatment to all interrogations by U.S. government officials, including the CIA. Introduced by Sen. John McCain (R-AZ), the amendment would "close the loophole in the Torture Act," says Silliman. "Abusive treatment would be illegal no matter who does it."
Some administration officials have argued that the amendment's "cruel, inhuman or degrading" terms are too vague to give interrogators the clear guidelines they need to decide which questioning techniques are acceptable. But legal scholars say McCain's amendment would at least help avoid the vexing problem of distinguishing between techniques that are abusive and those that constitute torture.
"What may be a permissible method of interrogation for a 20-year-old man would be torture for an enfeebled 60-year-old woman," says Hutson, the former Navy judge. "So by pushing back what's acceptable to exclude anything 'cruel, inhuman or degrading,' then interrogators will be forced to err on the side of restraint."
Still, the increasingly ugly realities of armed conflict in the 21st century may require yet another revision in the laws of war. After all, despite additions that protect those fighting for unconventional armies, the Geneva Convention still don't address a scenario like the so-called war on terrorism, in which combatants like al Qaeda have no national affiliation whatsoever.
"The big debate now is whether there should be a meeting of the world community to figure out what the rights and protections should be for those combatants," says Silliman. "There's clearly a need for better rules for how to treat them, although I don't think the U.S. government would be eager to have the world community decide what they should be."
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