Letters.

• Position: Letter to the Editor

Reforging the Atlantic Alliance:

Philip Gordon's "Reforging the Atlantic Alliance" (Fall 2002) is a thoughtful and well-reasoned case for American policy support to the Alliance, but he treads too lightly on the critical importance of military power to NATO's future.

The Alliance still purports to be a military one even though the military capabilities of its European members and Canada are increasingly lagging behind those of the United States. U.S. military power is increasingly the factor that distinguishes NATO from other European institutions such as the European Union and the Organization of Security Cooperation in Europe. That military power gives the Alliance an efficacy in international security affairs that other European institutions lack, as evidenced in the Bosnia and Kosovo conflicts.

The impending expansion of NATO will only accelerate the growing military capabilities gap between the United States and other NATO partners. New members bring potentially great security burdens to the Alliance, particularly for ensuring the viability of Article 5 commitments, but have little to offer to NATO's military "tool box", to use Gordon's words. While potential candidates work hard to polish their credentials for NATO candidacy, these efforts substantially slacken after receiving membership. The Czech Republic and Hungary are two such cases, as Charles Gati has noted in these pages ("All That NATO Can Be: To Prague and Beyond", Summer 2002). The problem of "free riders" in NATO is bound to become a larger challenge in today's security environment than it was during the Cold War.

If NATO is to retain its distinctiveness and effectiveness as an instrument of statecraft it must work to bolster a broad spectrum of military capabilities instead of letting the Alliance lapse into a "coalition--facilitating organization" where political rhetoric reigns supreme. Few anticipated in January 1999 that, in a matter of months, NATO would be waging the largest military campaign in its history. The Alliance might have as little warning for its next conflict and needs now to prepare for meeting tomorrow's military contingencies.

RICHARD L. RUSSELL

National Defense University

Washington, D.C.

(The views expressed are those of the author and do not reflect the official policy or position of the National Defense University, the Department of Defense or the U.S. government)

Our Other Korea Problem:

The trends Nicholas Eberstadt discusses ("Our Other Korea Problem", Fall 2002) are real, but I find the conclusions he reaches from these trends to be overdrawn. American troops aren't leaving Korea anytime soon. The Korean army would be crippled. It is wholly dependent on American forces and the UN command. It lacks any independent history. It follows the American lead on nearly all matters. No Korean president could eviscerate the army and survive in office. Universal military service (and the perennial threat of war) means that, unlike Americans, all Koreans--especially the moderates and conservatives--take an active interest in military affairs. President Kim and his sup- porters suffered seriously in the polls and in the papers this summer when, upon North Korea attacking South Korean vessels and killing five ROK sailors, public realization of the Navy's state of disarray grew acute, and waves of anger at the dozing dovish president ensued.

This is not to mention Korean dependency in the fields of finance, investment and international trade upon American economic forbearance and the goodwill of the U.S. Department of Commerce. The poll data are disturbing, the Sunshine Policy is premised on foolishness, and the hulaballoo surrounding extraterritoriality, the rape cases and the deaths of two girls run down by U.S. vehicles are all troubling. Labor unions and students protest wildly over the most minor infractions. The reason, I think, is that we've simply picked a feisty Asian ally. Koreans have always chafed at whatever foreign presence involves itself in peninsular security affairs; that's unlikely to change. The Koreans are fundamentally a very conservative people. I don't think they would make any rash moves on a question so fundamental to their national security.

BRENDAN CONWAY

Seoul, Korea

After Guantanamo:

In "After Guantanamo" (Summer 2002), Jeremy Rabkin argues that the Geneva Conventions and other treaties of international humanitarian law do not automatically bind governments that ratify them. Instead, he contends, they apply a regime of reciprocity in which one party to a conflict is bound by the law only if its opponents follow the same rules.

Convenient as Rabkin's theory would be for those trying to defend the Bush Administration's flouting of the Geneva Conventions in Guantanamo, it flies in the face of the language and history of the conventions. Article 1 of the Geneva Conventions requires governments to respect the conventions' rules "in all circumstances." The obligation is unconditional. No mention is made of reciprocity. The official commentary on the Geneva Conventions makes the same point. Referring to the prominent placement at the beginning of each convention of the duty to apply the convention "in all circumstances", the commentary notes: "By undertaking this obligation at the very outset, the Contracting Parties drew attention to the fact that it is not merely an engagement concluded on the basis of reciprocity, binding each party to the contract only in so far as the other party observes its obligations. It is rather a series of unilateral engagements solemnly contracted before the world."

The U.S. Military Tribunal stated the rationale for this view on the eve of the adoption of the Geneva Conventions. In the High Command trial just after World War II, the tribunal stated that under general principles of law, an accused does not exculpate himself from a crime by showing that another has committed a similar crime. The International Criminal Tribunal for the Former Yugoslavia recently reaffirmed this principle in the Kupreskic case.

Rabkin strains to create a regime of reciprocity because U.S. actions in Guantanamo are so clearly indefensible under the Geneva Conventions themselves. Article 5 of the Third Geneva Convention creates a presumption that captured combatants are entitled to prisoner-of-war status until a competent tribunal determines otherwise. Few doubt that, after the required individualized hearings, autonomous Al-Qaeda forces would be found to fail the test for POW status under Article 4 of the same convention. Most of these Al-Qaeda forces do not bear arms openly, wear distinctive insignia, have a responsible chain of command, or generally respect international humanitarian law. But many Taliban troops, as well as militia operating with them, may well meet Article 4's requirements. Even Rabkin's concocted reciprocity theory cannot salvage the Bush Administration's conduct with respect to the Taliban detainees at Guantanamo.

Contrary to Rabkin's assertion, the POW designation does not seriously inhibit interrogation. POWs cannot be punished for failing to state more than their name, rank, serial number and date of birth. But ordinary criminal defendants in the United States cannot be punished for refusing to say anything at all. In each case, the incentives of plea-bargaining are permitted to induce cooperation. POW status also does not preclude criminal prosecution for any terrorist act. And POWs who are convicted of a crime need not be repatriated until the end of the armed conflict or their criminal sentence, whichever is later.

The only thing that POW status does preclude is trial before the Bush Administration's substandard military commissions. A tribunal in which the executive serves as both prosecutor and judge--that is, when there is no appeal to the civilian United States Court of Appeals for the Armed Forces-does not meet the Geneva Conventions' minimum requirements for the treatment of POWs. We should promote respect for a rule that prohibits such a blatant violation of due process, not try to dance around it, as Rabkin does.

There is one element of truth to Rabkin's reciprocity theory. If the United States, as a long-time promoter of international humanitarian law, flouts the Geneva Conventions, it will weaken these important norms and encourage other governments to violate them as well. That hardly serves the interests of United States and allied service members who face capture by hostile forces. It only serves those in the Bush Administration who seek to escape the constraints of international law...