Saturday, February 23, 2008

Think Again.

Foreign Policy Magazine's latest "Think Again" piece comes from law professor Steve Ratner, writing about the Geneva Conventions. He makes some very important points, clarifying that Camp X-Ray is legal, that Common Article 3 of the conventions applies to all noncombatants, including members of al-Qaeda, and that Conventions do allow interrogations.

However I found a few mischaracterizations as well. Regarding Guantanamo, for example, Ratner writes:

"The Geneva Conventions don't require the US to close up shop in Cuba. The rules simply insist that a working legal framework be put in place, instead of the legal vacuum that exists now."
Is there really still a legal vacuum? The US has established Combatant Status Review Tribunals to make POW status determinations, instead of simply applying or denying that status to whole groups of detainees. And it has established military commissions to try those detainees it suspects of crimes. This is all within the spirit and letter of Geneva. The problem is not that there's a legal vacuum, the problem is that these courts do not include standards measures for due process.

Here's another one:
"'The Geneva Conventions Ban Assassinations.' Actually no... Assassinating one's enemy when hostilities have been declared is not only permissible; it is expected."
OK, so it's true the Geneva Conventions don't ban assassination - the Hague Conventions do (it's considered a form of "treacherous killing"). And it's true that not all assassinations are illegal - you can hit a sitting head of state in an armed conflict, as long as he is a member of the armed forces. But assassinating civilian leaders is illegal. Ratner's conflation of "assassination" with "killing the enemy" blurs the entire distinction, I think, between lawful killing and extrajudicial execution.

Ratner also opines that the Geneva Conventions "can and do protect innocent bystanders and shield soldiers from unnecessary harm." But it's all relative. The treaties actually provide very little meaningful protection for civilians, even on paper. You need only not target them on purpose... collateral damage is perfectly fine, as long as it's "militarily necessary," which is left up to militaries to decide. This can make a genuine difference - the 88,000+ estimated civilian deaths in Iraq for a full five years, according to Iraq Body Count, are less than the damage wrought in one day over Hiroshima.

But to say that the conventions "protect" civilians is to conflate treaties with practical measures to keep civilians alive. It is weapons-bearers who protect civilians or choose not to. Whether they do this depends on whether they're properly trained, not on whether their government has signed a treaty.

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