After Guantanamo: The war over the Geneva Convention.

• Author: Rabkin, Jeremy

BRITISH TABLOIDS blasted the story around the world: The Americans had removed A1-Qaeda and Taliban prisoners to a secret torture camp in Cuba! Photographs showed prisoners gagged and shackled, and crammed into cells exposed to the elements. Amnesty International demanded immediate access to the scene of these abuses. Mary Robinson, the UN Commissioner for Human Rights, chimed in, along with other prominent human rights advocates and a supporting chorus of left-wing politicians in Europe. Unwilling to be left behind, the International Committee of the Red Cross (ICRC), self-declared "guardian" of the Geneva Convention on the treatment of war prisoners, weighed in with its own expressions of outrage.

The furor died down in less than a week as the facts became known. The prisoners, some of whom had been involved in a violent prison revolt in Afghanistan, had been restrained in transit but not within their prison cells in Guantanamo. Officials from the ICRC who visited the site soon confirmed that prisoners were receiving adequate food and medical attention , and that their makeshift prison offered no less protection from the elements than the hastily constructed facilities set up for their American guards.

It was left only to wrangle about legal details. The ICRC, along with Amnesty International and Human Rights Watch, insisted that the prisoners deserved the full protections accorded prisoners of war under the Geneva Conventions. After some initial verbal clutter, the Bush Administration maintained that terrorists were not technically prisoners of war, but that they would nevertheless be treated by the standards set down in the Geneva Conventions whenever possible. This did not satisfy the ICRC. "There are divergent views between the United States and the ICRC", officials in Geneva reported, vowing to "pursue dialogue" on the legal issues even as they acknowledged that there was no humanitarian crisis at Guantanamo.

The whole episode could be chalked up to typical European carping at American "unilateralism", enabled, if not created, by irresponsible slash-and-burn journalism. But the fracas says something important about the changing character of international law. This episode should warn the wise that ambitious new versions of international law are likely to become a continuing source of mischief in the world, and much trouble to the United States.

Whence the Laws of War?

THE IMMEDIATE source of law in the Guantanamo dispute is the third Geneva Convention of 1949, which concerns the treatment of war prisoners. Three other conventions were launched at the same time (on the treatment of wounded and sick combatants in the field; on the treatment of wounded, sick and shipwrecked combatants captured in naval war; and on the protection of civilians in occupied territory). The provisions in these four treaties were for the most part clarifications and elaborations of the Geneva Conventions of 1929, which in turn sought to elaborate and clarify standards agreed at The Hague Peace Conferences of 1906 and 1899. The underlying impulse for all of this is usually traced to the Geneva Convention of 1864, the first treaty to recognize a specially protected role for Red Cross medical services in wartime. (The International Red Cross had been established in Geneva only shortly beforehand and was instrumental in convening the 1864 conference.)

The dispute over the Guantanamo prisoners, then, is a dispute about treaty law--but treaty law with a history. It is worth our while to briefly review that history; for only in its light can we see how inventive the ICRC's current interpretation of the law really is.

That history indeed goes back further than the 19th-century conferences that gave formal recognition to restraints in the conduct of war. Yet restraint had not always been accepted practice. In medieval Europe, the sacking of towns and fortresses was regarded as a necessary reward for soldiers after the rigors of a siege, and a useful warning to the next target to surrender short of a siege. As late as the 16th century, Spanish theologians claimed to be applying the principles of St. Thomas Aquinas in justifying massacre and rape as an acceptable form of punishment for those who took the wrong side in a just war.

But unrestrained war of this kind seemed safely in the past by the mid-19th century. Wars had long since come to be the undertakings of professional armies, funded and directed by well-organized states that were generally eager to minimize injury to private property and ongoing commerce. It was widely accepted that states should respect certain limits and proprieties in war, especially in their treatment of captive enemy soldiers and civilians, well before the treaty conferences in Geneva and at The Hague. The prevailing conception of war was so gentlemanly that both Hague Conventions acknowledged the customary practice of releasing enemy officers on "parole" -- that is, their word as gentlemen not to escape or return to fighting, but be neutralized by their capture.

Indeed, by the 19th century, neutrality itself had achieved a considerable degree of moral prestige, as neutral powers were conceived by most European statesmen and jurists as standing aloof from the political intrigues and calculations of petty marginal advantage in the foreign ministries of warring states. The neutral power could thus be identified with the higher claims of humanity at large. Geneva and The Hague were thus thought to be especially appropriate sites for conferences on the laws of war precisely because Switzerland and Holland were neutral states.

The same conferences that polished up humanitarian standards for captives also sought to lay down broader limitations on the conduct of war--for example, against the use of submarines to sink merchant ships even of the enemy power. Restrictions were also negotiated on the size of artillery shells and the types of rifle bullets permissible in war. Admiral Alfred Thayer Mahan, one of the American delegates to the 1899 Hague conference, cautioned (regarding a ban on dropping bombs from aerial balloons) that improved weapons, by "localizing at important points the destruction of life", might well "diminish the [overall] evils of war and [so] support the humanitarian considerations we have in view." (1) But he was ignored by Europeans eager to experiment with what we would now call arms control.

Most of these experiments in mutual restraint were promptly abandoned amid the pressures of the First World War. The Germans ignored restrictions on submarine warfare in their determination to starve Britain of aid and supplies. The Allies imposed their own naval blockade to starve Germany and Austria of supplies--including food for civilians. World War II was still worse. Disregarding inter-war agreements that sought to revive limits on submarine warfare, the American and British navies adopted a policy of unrestricted submarine warfare against Japanese merchant shipping. Disregarding agreements on the protection of civilians, British and American bombers devastated the cities of Germany and Japan from the air, with little pretense of focusing on "military" as opposed to "civilian" targets. Hundreds of thousands of civilians died, even before the culmination of these efforts at Hiroshima and Nagasaki. Such ferocity could be defended as lawful reprisal for enemy aggression or for treaty violations by the ene my, releasing the Allies from their own commitments. But the truth is that Western governments were not much concerned about legal niceties in the midst of all-out war.

The hallowed idea of neutrality just barely survived World War II. In a struggle that was seen so clearly as a battle of good against evil, nobody on the winning side expressed admiration for states that had remained neutral. For several years the Soviets objected to admitting Ireland to the United Nations; members were required to be "peace-loving" and the Irish refusal to join the war against Hitler showed, said the Soviets, that Ireland was not reliably in favor of peace. Traditionally neutral states that had been overrun without serious resistance--Holland, Norway and Denmark--were chastened by the experience and readily joined the Atlantic Alliance after the war. Even Switzerland was condemned for trading with the Nazis rather than admired for holding itself aloof.

And yet some laws of war did survive, notably those covering the treatment of prisoners. Neither Stalin's Soviet Union nor the Japanese warlords professed to be bound by the 1929 Geneva Convention and neither expected any mercy from their enemies. But Germany remained a signatory and did honor its obligations toward fellow signatories--though not out of any sense of reverence for international legality. American and British (including British Commonwealth) prisoners were, with...