Critics' Attack on Tribunals Turns to Law Among Nations
The New York Times
December 26, 2001
THE JUSTICE SYSTEM
By WILLIAM GLABERSON
Going beyond claims that the
military tribunals authorized by
President Bush would violate civil
liberties guaranteed by American law,
some experts are beginning to argue
that they would breach international
law guaranteeing fair treatment of
prisoners of war.
Critics of the administration say the
president's order authorizing the tribunals conflicts with treaties like the Geneva
Conventions, which give P.O.W.'s facing charges of egregious conduct protections
that include the right to choose their own lawyers, to be tried in courts that are
independent of the prosecution and to appeal convictions. None of those rights are
assured in the president's order, which opponents say precludes at least two of
them.
The critics, among them legal experts with military backgrounds, say the tribunals
could create risks for the armed forces, including the possibility of charges by other
countries that American officers who conduct tribunals are guilty of war crimes.
"If the U.S. government is going to pull the wool out from under the Geneva
Conventions, that is going to be serious for our soldiers," said Francis A. Boyle, an
expert on the law of war at the University of Illinois.
A central issue, experts on both sides of a growing debate about the tribunals say,
is whether Mr. Bush meant to declare that members of the Taliban, Al Qaeda and
other organizations that support terrorists would not qualify for the protections
given prisoners of war.
The administration has sent contradictory signals on the
issue. The Defense Department has said that those
captured in Afghanistan are being provided the humane
treatment guaranteed P.O.W.'s by international law. And
in an interview, an administration official who spoke on
the condition of anonymity said, "It is not the case that we
have abandoned the Geneva Conventions" in planning for
the handling of those subject to trial by military tribunal.
But in remarks on Nov. 29, the president, denouncing
those who "seek to destroy our country and our way of
life," described them as "unlawful combatants." That was
the term applied by the Supreme Court in its 1942
decision upholding military tribunals for a group of
German saboteurs who had slipped into the United States.
In that ruling, the justices said spies and saboteurs were
violators of the law of war and so were not entitled to
prisoner-of-war protections.
Beyond the issue of whether the tribunals themselves
would be lawful is the question of how broadly they should
be applied. Critics say that grouping not only terrorists
but also forces of the nations supporting them as unlawful
combatants would invite other countries to so describe any
American troops who were engaged in a campaign that a
hostile nation deemed illegitimate.
"If we argue it is legal, we are arguing that other
sovereigns - Libya, Syria, Iraq, Cuba - could also have
tribunals," said Alfred P. Rubin, a former Pentagon lawyer
who is a professor at the Fletcher School of Law and
Diplomacy at Tufts University.
The administration's supporters say that no matter what
rules the United States adopts in deciding how to try
terrorists and their allies, the niceties of international law
would be unlikely to limit abusive treatment of any
Americans captured by some enemy nations.
But the critics say this country long ago decided that
compliance with agreements like the Geneva Conventions was in American
interests. During the Vietnam War, several experts noted, American military
officials at first refused to grant captured Vietcong the protections of prisoners of
war. But that decision was quickly reversed, they said, when it became clear that
Americans, too, would become prisoners during the conflict.
Much of the body of international protections accorded warfare's sick, wounded or
captured soldiers is laid out in the Geneva Convention of 1864 and its subsequent
revisions.
Although prisoners of war are usually released at the end of hostilities,
international law permits trial of captured opponents under certain circumstances.
(How serious the alleged offense need be is a matter of debate.) But even those
experts who back the administration say the president's "unlawful combatants"
remark suggested that the tribunals would not comply with the detailed
requirements of the prisoner-of-war pact formally known as the third Geneva
Convention, of 1949, Relative to the Treatment of Prisoners of War.
"He was making the claim that in the view of the administration, the standards of
Geneva III do not apply," said Ruth Wedgwood, an international-law professor at
Yale and the Johns Hopkins School of Advanced International Studies, who is a
defender of the tribunal plan.
Professor Wedgwood said the administration appeared to be laying the groundwork
for arguing that terrorists and their allies are not entitled to prisoner-of-war
protections, although the president's order said any military tribunals would
conduct trials that are "full and fair."
The administration official who was interviewed said it would be premature to
discuss the new criticism being directed at the tribunals, since the Defense
Department was still drafting regulations on how they would be conducted. Those
regulations, the official said, will comply with international law.
The official noted that the president had specified only minimal standards for the
tribunals - that sentences, for instance, must be approved by a two-thirds vote.
The official said the Pentagon could tighten those standards, providing that a death
sentence, for example, require a unanimous vote.
But some critics say the president's order includes so many provisions violating the
Geneva Conventions that it would be difficult for the regulations to meet the
conventions' requirements. Michael J. Kelly, an international-law specialist at
Creighton University School of Law, in Omaha, said a line-by-line comparison
showed many such instances. For example, he said, the president's assuming the
authority to make the final decision on the disposition of each case is in direct
conflict with the third Geneva Convention's provision that no prisoner be tried by a
court that fails to offer "the essential guarantees of independence and impartiality."
Further, the convention guarantees prisoners a right of appeal, while the
president's order seems to bar it. And the convention guarantees a defense counsel
of the prisoner's choice, where the president's order, while authorizing defense
lawyers, does not say whether the prisoner can choose his own.
Some of the critics, including Jordan J. Paust of the University of Houston Law
Center, who has taught at the Army's military law school, said the president
appeared to have concluded that it was assaults on civilian targets like the World
Trade Center that made the attackers unlawful combatants.
The trouble with that analysis, Mr. Paust said, is that it give terrorists the ability to
claim that under international law, attacks on military targets like the Pentagon
and the destroyer Cole are lawful acts of combat.
"What the president is doing," Mr. Paust said, "is legitimizing certain types of
terrorism."
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