Michael Radu: The Geneva Accords Are Out-of-Date

Michael Radu, at frontpagemag.com (1-14-05):

[Michael Radu is Senior Fellow and Co - Chair, Center on Terrorism and Counterterrorism, at the Foreign Policy Research Institute in Philadelphia.]

For international bureaucrats and United Nations diplomats, the city of Geneva, Switzerland is a lakeside paradise. Lately, Geneva has come to the attention of ordinary Americans -- at least, those following the war in Iraq and the confirmation hearings of Alberto Gonzales, President Bush's nominee for U.S. attorney general.

But the city is old news to human rights activists, owing to the four famous Geneva Conventions: the first, adopted in 1864, on the treatment of battlefield casualties; the second, in 1906, extending those same principles to war at sea; the third, in 1929, on the treatment of POWs; and the fourth, in 1949, on the treatment of civilians during wartime in enemy hands (two additional protocols were added to this in 1977 regarding the protection of victims of international and non-international armed conflicts).

For the shrinking majority of Americans who have not attended law school, the first and most striking aspect of the Conventions is their age and the unique circumstances that led most states to sign them. Ironically, the liberal Carter and Clinton supporters who regard America's Constitution as "a living document"--that is, subject to fashions that change with the times--nevertheless hail the Geneva Conventions and Protocols (the second of which was never signed or ratified by the U.S. Senate) as eternal monuments akin to the Pyramids.

The Conventions themselves, written over almost a century, were noble attempts to civilize European wars between nation-states. They wrote into international law something that most, if not all, Europeans had already been practicing for centuries: treat your country's war enemies as humans, rather than as dogs. They made it clear, by the way, that these rules dealt with enemies captured in wars between nations and states--that is, between armies operating under the political and military control of governments. The Conventions' impact was significant at the time. Thus,
Hitler treated American and British POWs relatively decently (though Japan did not), in part because the Fuhrer saw them as fighting on behalf of "civilized" states--unlike, in his mind, the ipso facto barbarians of Stalin's Soviet Union.

But in the 1960s, the winds shifted. Soviet influences came to dominate the UN General Assembly, producing Protocol II, which gave "national liberation movements"--the pro-communist, anti-Western groups trained and subsidized by Moscow that remain in power in places like Namibia and Zimbabwe--"rights" similar to those of regular armies. Protocol II, now revered by Senator Ted Kennedy and his allies, was rejected by Washington at the time.

Senate liberals believe that the Islamist terrorists captured in Iraq, Afghanistan, and elsewhere are genuine POWs, deserving POW treatment under the Geneva Conventions.

Those who demand that the Taliban and its al Qaeda supporters be treated as POWs assume that the Taliban was a legitimate government--an implication that places human rights advocates in the unsavory company of Saudi Arabia, the United Arab Emirates and Pakistan, the only governments to grant legitimacy to the Taliban.

The Geneva Conventions narrowly restrict the information a capturing power can ask of POW. Only "surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information" may be requested--which is meaningless in the case of most international terrorists, Islamist or not, who possess multiple passports under different names, no rank, and of course, no army "serial number." Even more important, terrorists wear no uniform and, as mentioned, operate for no legitimate state.

We hear from the anti-Gonzales crowd, including some senior retired military officers (who should know better), that the U.S. military must treat terrorists held in Guantanamo Bay as POWs or else Americans, if captured, will be subject to brutality. Regular armies will certainly treat American prisoners of war as well as possible; they fear the consequences. But--it hardly needs mentioning--suicidal Islamists do not care. For them, the beheading of enemies, civilian or not, is a matter of public relations, having more to do with CNN, Al Jazeera and Al Manar than the Geneva Conventions.

But wait, you say. If we treat terrorists as, well, terrorists, we sink to their level of moral depravity. Really? Effective interrogation, including the use of things Islamists dislike (dogs, pigs, and the Israeli flag) does not degrade us as much as it saves innocent lives. Yanking a prisoner's fingernail is torture indeed--but we cannot afford to write off psychological pressure.

The Bush Administration, as any other would in its place, must search for a legal solution to the previously unknown problem of how to treat terrorist captives. Domestic and "international" laws do not apply. The replacement law is unknown--and human rights activists should help find a solution, rather than help the terrorists.