Why the Intent and Purpose of the Geneva Conventions Matter So Much
One can find so many contradictions in the various pronouncements of the Bush administration and its supporters in the"War on Terror" that a full discussion of them all would fill a number of very large books. But here is a contradiction I find particularly revealing: while the proponents of war to remake the globe continent by continent repeatedly intone that this war isn't like any earlier one, and that we're now dealing with non-state actors and therefore all the rules have changed, they rely on all the"old" methods of warfare that they themselves tell us are now inapplicable. Thus, we prematurely give up the fight in Afghanistan against Al Qaeda, comprised of non-state actors -- and divert crucially needed resources to launch an invasion against a nation state. Moreover, the nation state we selected was one with only loose and ultimately inconsequential ties to Al Qaeda, and one that had nothing to do with the attacks of 9/11. But it appears that the administration preferred to use the"old" methods, and improperly targeted at that, rather than follow through the logic of the requirements of the"new" kind of war.
Here's another variant of the same phenomenon. One of the"technical" defenses of the brutality, abuse and torture visited upon many American prisoners is that they are"unlawful combatants," and therefore not entitled to the protections of the Geneva Conventions. Like all technical defenses, this avoids all the hard questions. It is true that, technically speaking, the Geneva Conventions do not apply to Al Qaeda. But rather than focusing on the letter of the Conventions -- which were drafted under the"old" rules of war -- why not inquire into the intent and purpose behind those Conventions, to determine if they are still relevant to this"new" war? When it is convenient, the defenders of the"War on Terror" will ignore the"new war" requirements, and invade Iraq -- while in a different situation requiring a different analysis, they rely on the"old war" Conventions and then discard them, declaring them irrelevant.
Nice work if you can get it. But this underscores the contradictions and frequent incoherence of the approach utilized by the"War on Terror" advocates: if a given argument works in one instance, employ it as forcefully as you can; if it doesn't work elsewhere, forget it. And never, under any circumstances, attempt to integrate the various conflicting principles into a coherent, non-contradictory approach. Keep saying you're fighting the"new" war even when you aren't, and hope that no one will notice the discrepancy -- or categorize an objection to what you want to do as arising out of the"old war" mindset, and then set it aside with no further inquiry.
This kind of approach lacks all seriousness and all depth: it is the height of superficial analysis and, at its worst, it is duplicitous and hypocritical.
Here is an article which addresses some of these issues briefly, but comprehensively. I urge you to read the complete article; here are a few excerpts:
"To the victor go the spoils," goes the old saw, and in the game played by the Bush administration over how to define enemy combatants captured during the war on terror, the spoils supposedly include the right to define who deserves what treatment. This despite our nation's having agreed, in signing the third Geneva Convention, that"the High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances" -- and President Bush's having stated, in his 2002 State of the Union address, that"America will always stand firm for the nonnegotiable demands of human dignity."I have commented before on the narcissistic myopia which leads political leaders to declare with all sincerity that"everyone wants what we want," and that"everyone wants what we have." This is the attitude that led, in significant part, to the disaster of Vietnam, as Barbara Tuchman has pointed out. Bush has internalized this worldview completely, despite the many lessons of history which conclusively prove that it is simply not true, and that it utterly ignores history, culture and specificity.
The Geneva Conventions, developed and ratified from 1864 to 1949, aimed to protect the status of enemies captured during conflict. They put forth concrete criteria by which enemy civilians are to be treated and bound every signatory nation to abide by the statutes. Every nation was likewise assured to some degree that signatory nations would properly treat captured prisoners and civilians.
Even a cursory read of the third Convention reveals that its worldview is one in which geopolitical action is the exclusive domain of nation-states. The Convention defines prisoners of war as, among other things, members of nation-state armies, in a militia with a defined chain of command. The fact is that the administration is right about this point: The 1949 Convention obviously doesn't strictly define al-Qaida members as prisoners of war. According to the letter of the law, the third Convention's protections are limited to combatants who are in some manner attached to nation-states that are signatories to the Convention, and fighting in a war conducted through"lawful" means.
Many political theorists today point out the limitation of such a strict nation-state worldview: Political theory and policy that do not extend beyond a focus on nation-states cannot be exhaustive in describing or prescribing present political reality.
Yet Gonzales' position reveals something more disturbing about the assumptions of the administration: their very pragmatic focus upon the letter, as opposed to the spirit, of the law. Arguably, one could have recognized in the third Convention an attempt, in the language of the day, to institute protections for humans deserving a dignity that must be recognized universally by all people of goodwill. Thus, upon recognizing that the Convention is limited in its theoretical vision, the administration could have pushed its world peers to further develop the Convention to ensure protection for persons not previously included because of the limited worldview. There is long precedent for this: After all, Bush's favorite philosopher once said,"Whatever you do to the least of these, you do unto me." Instead, the administration named the prisoners in its war on terror as"unlawful combatants," thereby transforming them from humans deserving of dignified treatment, regardless of circumstances, into entities that could be manipulated at will.
Some of these prisoners have indeed participated in acts for which it is difficult to maintain a view of their humanity. But we must remember that one major reason for constraining the treatment of enemy prisoners is how it reflects upon us and expresses our humanity, or lack thereof. Surely we do not triumph over the forces that seek to destroy democracy and freedom if we too act in a way that violates the principles of law arising from our founding ideals about the dignity of humans.
Even more is at stake, however. This administration has cloaked itself in the garments of moral values and universal goods, defending them in the face of"liberal cultural relativism." The president has pledged to protect the"the nonnegotiable demands of human dignity." But in this matter, instead of choosing to extend to"enemy combatants" the most basic legal rights (such as representation) or moral treatment (no debasing torture tactics), the administration has rejected the spirit of the law and its obligation. Under the banner of"extreme emergency," it chose to create a climate in which these detainees could be treated in a subhuman and strategically beneficial manner. The stakes of that choice are devastating for our government's claims to moral legitimacy on the one hand and political expediency on the other. While grave emergencies sometimes require dire actions, the principle by which the administration has operated in this situation is strictly one of utility: The ends justify the means.
Many will quibble about whether the Christian imperative to abide by both the letter and the spirit of the law is readily applicable to the political realm. Indisputable, however, is this fact: Choosing to ignore the underlying principle of the Geneva Convention's protections for the dignity of persons exposes quite clearly that whatever Bush and his advisors are they are decidedly not the one thing they most desire to be: moral universalists.
And in his article, Michael Kessler points out yet another failure in this attitude, especially as revealed in the arguments offered by the"War on Terror" defenders. They simultaneously claim that they fight on behalf of"universal moral values" -- while their actions reveal that they themselves do not believe in the values they claim that"everyone wants."
"Universal human dignity"? They'll acknowledge it -- and trumpet it as their most deeply desired goal -- when it suits their purposes. And when it doesn't, never mind. Hardly a principled approach, Mr. Bush -- and as Kessler also suggests, hardly Christian.
So what specific values actually do motivate Bush and his most fervent supporters? God only knows. And in this context, I mean that literally. The contradictions and inconsistencies in which they repeatedly engage render their actual motives impervious to rational inquiry.
UPDATE: Skip Oliva of Citizens for Voluntary Trade, and whose work and views I respect enormously, emails these comments:
I don't care for the"intent and purpose" analysis. It's too subjective and can easily be turned against individual rights--as we've seen with many"originalists" in the legal community.I thank Skip for his kind words about my previous entries on the subject of torture; this one in particular provides a summary of some of the major arguments I've offered. This post from yesterday is relevant as well, and also discusses what I view as the entirely undeserved praise heaped on Andrew Sullivan for his criticisms of the Bush administration in this area.
With respect to the issue of torture, I prefer a simpler analysis: There is no right to torture another human being. The use of force is only justified in self-defense. As your own posts have persuasively demonstrated, torture is never necessary in self-defense. Since we as individuals have no right to torture, we cannot delegate that authority to any government.
The Geneva Convention is a red herring as far as I'm concerned. Let it drift into the dustbin of history.
I think Skip's points are all very well-taken, and I don't disagree with any of them. So please consider his points added to my own. Given the extent to which the Geneva Conventions are discussed, I still think it's valuable to make the arguments I did above -- and I think it's perhaps even more important to note the many contradictions in the arguments advanced by the"War on Terror" supporters. But the more arguments to be made in opposition to them, the better.
STILL MORE: Read this, too. Here are the final paragraphs:
Torture is not wrong because someone else thinks it is wrong or because others, in retaliation for torture by Americans, may torture Americans. It is the torture that is wrong. Torture is wrong because it inflicts unspeakable pain upon the body of a fellow human being who is entirely at our mercy. The tortured person is bound and helpless. The torturer stands over him with his instruments. There is no question of"unilateral disarmament," because the victim bears no arms, lacking even the use of the two arms he was born with. The inequality is total. To abuse or kill a person in such a circumstance is as radical a denial of common humanity as is possible. It is repugnant to learn that one's country's military forces are engaging in torture. It is worse to learn that the torture is widespread. It is worse still to learn that the torture was rationalized and sanctioned in long memorandums written by people at the highest level of the government. But worst of all would be ratification of this record by a vote to confirm one of its chief authors to the highest legal office in the executive branch of the government.Read the whole thing.
Torture destroys the soul of the torturer even as it destroys the body of his victim. The boundary between humane treatment of prisoners and torture is perhaps the clearest boundary in existence between civilization and barbarism. Whether the elected representatives of the people of the United States are now ready to cross that line is the deepest question before the Senate as it votes on the nomination of Alberto Gonzales.
By the way, I don't think there is necessarily a contradiction at all between certain of the arguments I made in the original body of this post and Skip Oliva's points about the failings of the"intent and purpose" kind of analysis. But that would take longer to explain than I have time for at the moment, so I'll try to get to it in the next several days.
(Cross-posted at The Light of Reason.)
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mark safranski - 1/21/2005
I hold no brief for torture or torturers but I think you do need to consider your words here and think a moment:
"It is true that, technically speaking, the Geneva Conventions do not apply to Al Qaeda. But rather than focusing on the letter of the Conventions – which were drafted under the “old” rules of war – why not inquire into the intent and purpose behind those Conventions, to determine if they are still relevant to this “new” war? "
The intent of the Geneva Conventions was not merely to ensure Red Cross visits or even humane treatment of combatants - as good as those things may be - but to establish real *rules* for warfare so that battle will actually be restricted, to the greatest degree possible, to actual combatants and not to civilians.
By granting terrorists who as a matter of course target civilians directly, fight out of uniform, commit crimes against humanity against non-combatants automatic POW status you reward and encourage them to continue in these practices. For 9/11 or Beslan alike there seems to be no penalty in your argument but Geneva cannot work to protect non-combatants if it is a toothless shield for murderers. What you subsidize, you will get more of.
Now the Bush administration has gone about the illegal combatant issue in the worst way possible, I grant you but in designating al Qaida members " illegal combatants and refusing them the protections of Geneva they are on safe ground - morally as well as legally.
What the Bush administration has failed to do is bring these people to justice by trying them for war crimes for the above offenses before *properly* constituted court-martials or military commissions. (Add to that failure the mistreatment of prisoners and incompetently paroling unrepentant jihadis to boot).
There are precedents for these things, the actions of al Qaida have happened in previous wars but back then we enforced the laws of war with greater severity. Out of uniform and caught by the enemy ? You were shot and everyone expected that would be the case.
My guess for why the Bush people have failed here is twofold. A desire for intelligence and a fear of the political uproar with our allies when monsters like Khalid Sheikh Mohammed would get sentenced to the firing squad (and fear of the rage of American public opinion if we spared him in deference to our allies feelings about capital punishment).
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