Rules for an unruly war
In this age of suicide bombers and guerrilla street fighting, are the Geneva Conventions the latest casualty?
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"These are Draconian courts that are more likely to convict than not," says Michael Rattner of the Center for Constitutional Rights in New York.
The trickiest category of detainees are those who acted more like terrorists than soldiers in Iraq or were detained outside the battlefield in Afghanistan and shipped to Guantánamo. Human rights lawyers argue that this type of defendant should be classified as a terrorist and prosecuted under criminal law.
Take the case of the Iraqi soldier who dressed in civilian clothing and drove a taxicab. He blew himself up in March at a US checkpoint, killing four American soldiers. If the suicide bomber had survived, should he have been prosecuted under US law, Iraqi law, or the International Criminal Court, which neither Iraq nor the US has ratified?
As the ICRC's Mr. Rona points out, labeling the battle against international terrorism a war doesn't necessarily mean that the international laws of war are invoked and that the US has the right to operate outside civilian criminal-justice norms. "Certain levels of hostilities do not rise to the level of armed conflict because societies have the ability to resolve conflict through means that don't involve institutionalized violence," Rona says.
Adam Roberts, a professor of international relations at Oxford University, says the Geneva Conventions do provide a middle ground for handling questionable combatants. He cites the 1977 additional protocol, which provides guarantees for those who are neither POWs nor civilians.
The US appears to have recognized that middle ground in parts of the instructions released this month for prosecuting Guantánamo detainees. Many, but not all, elements of the instructions adhere to provisions of the accord that created the International Criminal Court as well as the 1977 Geneva Conventions addendum, even though the US Senate never ratified the amendments.
The misclassification of combatants is not the only potential violation of the Geneva Conventions in recent wars. Human rights groups say the US military may have violated the conventions ban on cluster munitions in residential neighborhoods and tolerated looting in the early days of occupation.
More serious than US violations, says Wedgwood, may be Iraq's strategic misuse of the laws of war. Its soldiers and foreign allies reportedly used civilians as shields, employed surrender as a ruse to attack US troops, stored ammunition in hospitals, and fired from mosques.
Before the war in Iraq began, a new consensus emerged among all sides that wholesale changes to the Geneva Conventions right now would not be a good idea. The Bush administration, which was the main proponent of such changes, backed off from that position at a conference sponsored by Harvard University in January, says organizer Claude Bruderlain.
Past experience suggested that codifying changes could do more harm than good, creating watered-down provisions. Delays in revisions followed both world wars, says François Bugnion, head of the ICRC's legal division in Geneva. "It would be quite difficult and quite counterproductive to revise the rules in the middle of a situation such as we know today."
