AT WAR
Assault on the Geneva Convention
The American Bar Association tries to legitimize terrorism.
BY DAVID B. RIVKIN JR. AND LEE A. CASEY
Sunday, March 9, 2003 12:01 a.m.
Last weekend's capture of Khalid Sheikh Mohammed, al Qaeda's top planner, was a major blow to Osama bin Laden's terrorist network and arguably the biggest victory yet in the war on terror. The alleged mastermind of the Sept. 11 attacks is now being held in an undisclosed location where the U.S. Central Command is applying "all appropriate pressure" to extract information from him regarding the al Qaeda network and its operations.
Apprehended in Pakistan, serving under no flag, and having repudiated the laws of war, Mohammed is rightly considered an "unlawful combatant." Over the centuries, an entire body of laws of war was designed to delegitimize and suppress unlawful combatants. Thus, captured al Qaeda and Taliban operatives are not due the rights and privileges of lawful prisoners of war under the Geneva Conventions. They are entitled to humane treatment but can be detained in less comfortable conditions than POWs, and can be interrogated more vigorously--so as to obtain military and intelligence information. They may be held, without a criminal trial, for the duration of the conflict.
In addition, they can be harshly punished for their unlawful resort to force, up to and including the death penalty. Equally, those al Qaeda and Taliban operatives still at large may be lawfully attacked at any time by any legitimate military means. Although they must be allowed to surrender (without condition) if they ask for the opportunity, there is no need for American forces to attempt to capture them when they may more easily be killed or wounded.
Unfortunately, many of our allies and even some Americans recoil from the application of these harsh traditional strictures and advocate more "compassionate" treatment for unlawful combatants. Specifically, they claim that captured members of groups like al Qaeda and the Taliban should be presumed to be POWs, until proven otherwise through an elaborate case-by-case legal process.
Believing that the peacetime criminal justice system's rules should govern, the American Bar Association has just overwhelmingly passed a resolution, urging that unlawful combatants be given access to counsel and greater opportunities for judicial review, all to better challenge their detention. Numerous human-rights groups decry the Bush administration's vigorous interrogations of unlawful combatants, even though these have helped to avert deadly attacks against Americans and resulted in the capture of numerous al Qaeda and Taliban operatives.
Meanwhile, many nongovernmental organizations assert that the laws of war should be changed to accommodate armed, irregular nonstate actors, so as to bring them within the "system," and thereby moderate their conduct. It is, of course, unclear how much moderation can be induced in people who fly civilian airplanes into buildings and subscribe to the view that all "infidels" are fair game.
Some Europeans have even argued that unlawful combatants (precisely because they do not distinguish themselves from the civilian population, and might be confused with noncombatants) can only be attacked when they are themselves attacking. At other times, the argument goes, they must be treated like criminal defendants, and "arrested." This clearly is the view underlying the condemnation, by international activist groups like Amnesty International and European officials, of Israel's "targeted killings" of Palestinian terrorist leaders. It is also what prompted a senior Swedish government official recently to accuse the U.S. of "summarily executing" a group of al Qaeda leaders killed by a missile attack in Yemen.
To put it bluntly, while holding the armed forces of law-abiding states to ever more elaborate restrictions, our allies seek to treat unlawful combatants as well as, or even better than, lawful ones. The obvious rejoinder to these efforts to privilege unlawful combatants is that they have already deliberately rejected the most important aspects of "international humanitarian law," including the injunction against targeting civilians, and that offering them any concessions simply encourages their unlawful conduct.
Policy arguments aside, the Bush administration is on very firm legal ground here. Both long-standing customary international law, and the 1949 Geneva Conventions, fully recognize the difference between regular soldiers, who comply with the laws of war and are entitled to POW status, and guerrillas or terrorists, who operate without uniforms, concealing their arms, and deliberately target civilians, who are not. The U.S. courts, in recent cases involving both captured al Qaeda and Taliban operatives, have recognized and upheld this distinction.
Most of our allies, however, have accepted "Protocol One," the 1977 addition to the Geneva Conventions "relating to the protection of victims of international armed conflicts." While this treaty also distinguishes between lawful and unlawful combatants--and the International Committee of the Red Cross assured the world that Protocol One would not legitimize or legalize terrorism--it has been interpreted by "humanitarian" activists as providing more advantageous treatment for "unlawful combatants."
Fortunately for the U.S., Ronald Reagan always could tell humbug from humanitarianism. In early 1987, he rejected Protocol One, denouncing it as an effort to revolutionize--both literally and figuratively--the Geneva treaties and the established laws of war by granting the rights and privileges of honorable soldiers to guerrillas and terrorists.
These days, this is far from an academic dispute. Because some of our allies felt that U.S. treatment of captured unlawful combatants violated the Geneva Conventions, they indicated that they would not turn al Qaeda and Taliban prisoners, captured in Afghanistan, over to U.S. forces there. Obviously, coalition warfare loses much of its appeal if the participants disagree on the applicable rules. These practical problems aside--because, in the 21st century, unlawful combatants relentlessly seek access to weapons of mass destruction, and pose a life-and-death threat to democracies--the need to delegitimize them is particularly compelling.
Thus, not according them a full set of POW privileges does not reflect a compassion deficit on our part. Rather, it is an important symbolic act which underscores their status as the enemies of humanity. The failure by many of our allies and international humanitarian groups to appreciate this is particularly ironic. Blurring the distinction between lawful and unlawful belligerents, which lies at the very core of modern laws of war, is likely to erode this entire hard-won set of normative principles, disadvantaging both the interests of law-abiding states and making warfare even more destructive and barbarous.
To win the war on terror, the Bush administration must aggressively oppose the continuing efforts--both at home and abroad--to privilege unlawful combatants under the banner of humanitarianism. This issue is too important to be left to the lawyers, and merits the attention of top U.S. policy makers. Anything less would threaten our ability to defend ourselves and embolden the Khalid Sheikh Mohammeds of the world.
Messrs. Rivkin and Casey, lawyers in Washington, served in the Reagan and first Bush administrations.
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