MEQ EDITORS' NOTE:

ARTICLE:

NAZIS & ISLAMISTS

These Nazi intelligence agents sought to sabotage targets within the United States. They were unsuccessful. Several weeks later, the Federal Bureau of Investigation (FBI) arrested them in Chicago and New York, remanding them to a U.S. Army military commission for trial.

Like the "illegal combatants" held today at the U.S. Naval Base in Guantánamo Bay, Cuba, these Nazi saboteurs challenged the legality of the military tribunal process. Their lawyers took the case all the way to the U.S. Supreme Court, which ruled against them. In a unanimous decision delivered by Chief Justice Harlan Fiske Stone, the Court determined that the German agents had violated the law of war and that a "military commission was lawfully constituted" to try them for that crime. Thus, declared the Supreme Court, "the motions for leave to file petitions for writs of habeas corpus are denied." [3]

Fast-forward almost sixty years. Foreign agents infiltrate the United States. Again, they don civilian clothes to cloak their operations. Nineteen hijackers board aircraft in Washington and Boston, seize them, and crash them into the World Trade Center, the Pentagon, and a field in rural Pennsylvania. On September 20, 2001, President George W. Bush stood before a joint session of Congress and declared war against terrorism:

"Tonight we are a country awakened to danger and called to defend freedom … Whether we bring our enemies to justice, or bring justice to our enemies, justice will be done." [4]

The world did not have to wait long to see Bush back his rhetoric with action. Less than three weeks later, U.S. forces invaded Afghanistan to destroy the Taliban and Al-Qa'ida's sanctuary. While fighting, U.S. troops encountered foreigners who had cast their lot with Osama bin Laden. The ranks of these Jihadists included Western converts to Islam, such as American John Walker Lind and Australian David Hicks. They also seized immigrant nationals or their children from Canada, Belgium, Denmark, France, Russia, Spain and Sweden, as well as from many Muslim nations. These Jihadists neither wore uniforms, nor respected the Geneva Conventions. On March 4, 2002, for example, an unmanned reconnaissance aircraft captured on film the summary execution of captured 32-year-old Navy SEAL Neil Roberts by three Jihadists. [5] Accordingly, the United States made a decision to detain these captured Al-Qa'ida and Taliban fighters as illegal combatants, rather than prisoners of war.

International law has progressed in the six decades since the U.S. Supreme Court ruled against the Nazi saboteurs. But, despite the arguments made by numerous academics and human rights activists, the law does not necessarily side with the detainees. In its 2004 Rasul v. Bush decision, the Supreme Court upheld the right of the U.S. government to detain enemy combatants, even if they are American citizens. The Court, however, mandated that non-American detainees could challenge their incarceration in the U.S. Courts. [6]

The question of how to treat captured Jihadists extends beyond Guantánamo Bay, Afghanistan, and Iraq: Israel has for years been forced to contend with Palestinian terrorist organizations that dispatch suicide bombers. Both the Kurdistan Workers Party (Partiya Karkaren Kurdistan, or PKK) and various Islamist groups target Turkish civilians.

But, while the human rights community has been critical of certain United States policies for years, since September 11, the Bush administration has matched or perhaps even surpassed Israel and Turkey as a primary target of such groups as Amnesty International and Human Rights Watch.

Many non-governmental organizations reserve venom for their condemnation of the U.S. policy of detaining captured Al-Qa'ida and Taliban fighters as illegal combatants. Amnesty International labels the U.S. detention facility at Guantánamo Bay a "human rights scandal." [7] Both Amnesty International and Human Rights Watch condemn Washington's characterization of captured Jihadists as illegal combatants as a violation of the Geneva Conventions. "In its treatment of the detainees at Guantánamo," declared Human Rights Watch, the United States "has been unwilling to fully apply international humanitarian law… [and] has flouted international human rights standards." [8] Amnesty International has adopted a similarly critical attitude. In a statement to the sixtieth session of the U.N. Human Rights Commission, Amnesty referred to "the human rights scandal of Guantánamo Bay" where "international law was flouted from the outset." [9]

WHO DO THE GENEVA CONVENTIONS PROTECT?

Yet, treaties are more like commercial contracts in that they are traditionally viewed as binding only among their parties. Some multinational agreements have evolved into the universally applicable "customary international law." This development is enshrined in the doctrine of jus cogens, which asserts the existence of a higher law that supersedes both national law and international agreements. [13]

In the wake of World War II, the international military tribunal at Nuremburg declared that the 1907 Hague Regulations Respecting the Laws and Customs of War on Land to be customary international law. [14] Yet, jurists have reached no such consensus about whether the 1949 Geneva Conventions have made such a transition. [15]

Unfortunately, the basis for the Red Cross's conclusion appears to have more to do with institutional self-aggrandizement than with international law. Many Leftist academics and activists insist that the Geneva Conventions must be universally applied. Yet, that argument is undercut by those treaties' texts. The Third Geneva Convention explicitly states that parties need not apply it to all conflicts, especially when the foes are not parties, and when enemies do not abide by its terms. [16]

No terrorist group is a party to the Geneva Conventions. They have not signed, much less ratified, those treaties. Moreover, it is evident that Hamas, Hezbollah, and members of the global Al-Qaeda network spurn both the spirit and the letter of international treaties designed to ameliorate the cruelty of war. Bloody attacks in New York, Jerusalem, Bali, Madrid, and Beslan are testament to the fact that these groups seek to kill civilians, rather than to take captives. And when Islamist terrorists do seize hostages, brutality, rather than protection, appears to be the rule.

Iraqi insurgents beheaded 26-year-old American businessman Nicholas Berg and shot 20-year-old Keith Matthew Maupin shortly after the June 28, 2004, transfer of sovereignty. On July 22, Iraqi police found the beheaded corpse of a Bulgarian hostage. The Arabic satellite television network, Al-Jazeera, had confirmed, on July 13, that it had a tape showing his execution. [17] Iraqi captors have also executed Pakistanis, a Turk and a South Korean, among others. Such mistreatment of prisoners is not a new phenomenon among terrorist groups. In the 1980s, Hezbollah captured a number of Westerners in Lebanon, among them priests, journalists, professors, a librarian, and even the President of the American University of Beirut. Hezbollah tortured and hanged U.S. Marine Lieutenant Colonel William Higgins. Iraqi insurgents who decapitate civilian hostages have no more international legal claim to protection than did Hezbollah kidnappers.

By violating every tenet of international law regarding treatment of prisoners, terrorist groups forfeit any entitlement to protection under the Geneva Conventions. U.S. forces would be within their legal rights to treat captured Al-Qa'ida members as they did Nazi saboteurs during World War II — trial by military commission and execution by firing squad. [18]

A similar argument applies to the Taliban. In 1956, the government of Afghanistan signed the Geneva Conventions. If the Taliban were the legitimate government of Afghanistan, then the United States would be bound to apply the Third Geneva Convention to captured Taliban fighters. Yet, only three governments — Pakistan, Saudi Arabia, and the United Arab Emirates — recognized the Taliban's claim to power. In fact, throughout this period, the rival Northern Alliance occupied Afghanistan's seat at the United Nations. A typical illustration of the U.N.'s noncommittal attitude towards the Taliban appears in U.N. Security Council Resolution 1267, which addressed the group as only an "Afghan faction." [19] After a fistfight erupted between diplomats at the Afghan embassy in Washington, police simply expelled everyone and shuttered the building.

If international bodies did not recognize the Taliban as Afghanistan's legitimate government, then their militias could not be considered Afghanistan's regular armed forces any more than Hezbollah can be considered the army of Lebanon. Thus, Taliban fighters were not eligible for automatic Third Geneva Convention coverage. The United States is simply not obligated to extend Third Geneva Convention protections to every militia or organization that has pretensions to power.

A subsection of Article Four does afford automatic prisoner of war (POW) privileges to "members of regular armed forces who profess allegiance to a government or authority not recognized by the detaining power." [20] Accordingly, even if Washington did not recognize the authority of Mullah Omar's regime, U.S. forces would still be obligated to grant POW status to the Taliban had the Taliban been a regular force. However, the Taliban was anything but a regular force. Secretary of Defense Donald Rumsfeld addressed this issue at a February 8, 2002, press conference:

"The Taliban did not wear distinctive signs, insignias, symbols or uniforms … To the contrary, far from seeking to distinguish themselves from the civilian population of Afghanistan, they sought to blend in with civilian non-combatants, hiding in mosques and populated areas. They [were] not organized in military units, as such, with identifiable chains of command…." [21]

DOES INTERNATIONAL LAW PROTECT TERRORISTS?

The drafters of the 1949 Geneva Conventions sought to base the treaty on past precedent. While the 1907 Hague regulations stipulated that "the laws, rights, and duties of war apply not only to armies, but also to militia and volunteer corps," those same regulations also presented a four-part test to determine eligibility of those irregular forces for lawful combatant status. [23] In order to be recognized as legitimate combatants, the Hague regulations required irregular units to "be commanded by a person responsible for his subordinates; to have a fixed distinctive emblem recognizable at a distance; to carry arms openly; and to conduct their operations in accordance with the laws and customs of war." [24]

The drafters of the Third Geneva Convention adopted this four-part test as part of the criteria to determine eligibility for POW status. The delegates drafting the Convention made quite clear, in their debates, that they did not want to confer automatic POW status on irregular forces. After much negotiation, a special committee of the conference resolved this question by crafting Article 4(A) so as to differentiate between regular armed forces, constituent volunteer corps and militias on one hand, from irregular resistance movements on the other. The drafters agreed to apply the Hague four-part test to the latter. [25]

Terrorists groups ranging from separatists like the PKK in Turkey, Chechen rebels in Russia, or the Pakistani-backed Harakat ul-Mujahideen in India; to Palestinian groups like Hamas, Palestinian Islamic Jihad, and the Al-Aqsa Martyrs' Brigade, to the numerous cells that comprise the Al-Qa'ida network all fail the four-part test. Hijacking civilian airliners and flying them into office buildings is not "in accordance with the laws and customs of war," nor is using human bombs to blow up buses, nor is lining up and executing school teachers. On these grounds, as well, the Taliban also forfeited claim to POW status. While they did carry arms openly, they neither observed the international humanitarian law, nor wore any recognizable sign to distinguish themselves from civilians. [26]

During the chaos of combat, confusion often reigns supreme. In battlefield confusion, captured combatants' eligibility for POW status may not be clear. During the mid-1980s, I served in Lebanon as an officer in Israel's Golani Infantry Brigade. We were engaged in a classic guerrilla war against Hezbollah, Amal, and Palestinian fighters who dressed in blue jeans and toted RPG-7s and AK-47s. At the slightest hint of disadvantage, these combatants would drop their weapons and melt away into the nearest Lebanese village, where they would try to blend into the local population.

The ensuing murkiness is precisely why the Third Geneva Convention demands that a "competent tribunal" determine the status of prisoners where there is doubt as to their proper status. [27] But, while it mandates that a tribunal be held, the convention does not dictate details of the process.

In its war against terror, the U.S. military adheres to the competent tribunal requirement. No detainee ended up in Guantánamo without a series of interrogations by U.S. intelligence officials. This process was intended to determine whether a prisoner was a bona fide enemy or an innocent bystander in the wrong place at the wrong time. Questions were asked, explanations given, and evaluations made. Thus, while Australian Jihadist David Hicks wound up in Guantánamo and will shortly appear before a U.S. military commission, Afghan Haji Faiz Muhammad was arrested on suspicion of affiliation with the Taliban and was later released. Faiz Muhammad had few complaints about his treatment in U.S. custody, declaring "we had enough food to eat. We could pray and wash with water five times a day." [28]

FACILITATING THE FIGHT AGAINST AL-QA'IDA

This would allow more intrusive questioning for captured terrorists than the Geneva Conventions permits for prisoners of war. However, that does not make U.S. actions illegal or mean that the United States is guilty of torture, as some human rights activists have claimed. [30] The U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person." [31] However, it is doubtful whether sleep deprivation or sensory disorientation constitutes "severe pain or suffering." While all four Geneva Conventions contain a common Article Three injunction against, "cruel treatment and torture," [32] the interpretation of this provision rests upon the definition of torture for which the definitive document is the U.N. torture convention. True, Article 16 of UNCAT states, "Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture." But international legal language is precise. Obligation to "undertake to prevent" is not absolute prohibition. While lesser categories of coercion should not be routine, they may be available to intelligence authorities in the event of a classic ticking bomb scenario. Can some degree of force be used, for example, on a terrorist who has knowledge of an impending attack? If depriving a captured Al-Qa'ida operative of sleep could prevent a bombing such as that which struck Madrid in March, 2004, would that be a greater violation of international law than allowing the slaughter of innocents to proceed?

The U.S. government is not only within its rights, but is also wise to hold Al-Qa'ida members incommunicado. A prisoner's military value does not solely consist of the information that a captive carries in his head. By holding Al-Qa'ida members incommunicado, the U.S. military can sow the seeds of confusion and uncertainty in terrorist ranks. If bin Laden's followers do not know whether one of their comrades has been captured, then they also do not know whether any of their operations have been compromised. This is at the heart of the controversy about whether U.S. officials prematurely revealed that they had captured an Al-Qa'ida computer specialist named Muhammad Naim Nur Khan, who had assisted authorities in entrapping other Al-Qa'ida operatives who were unaware of his capture. [33] Yet, if the Third Geneva Convention were applied to terrorists, the treaty's strict rules on reporting the capture of enemy POWs would make such a ruse de guerre impossible and would lead to the death of more civilians.

Thus, U.S. policy in its war against terror is consistent with the Third Geneva Convention. But human rights advocates, such as Anthony Dworkin of the Crimes of War Project, argue that U.S. detention of suspected Al-Qa'ida fighters in Afghanistan or suspected insurgents in Iraq nonetheless violates the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War. [34] The terms of this Convention are expansive and seek to prevent unnecessary hardship to civilians in occupied territory. Nevertheless, any argument that U.S. policy violates the Fourth Geneva Convention can only be based on a very selective reading of that treaty. After all, regardless of how ambitious the Convention's terms are, they still recognize the exigencies of war and the necessity to govern captured territory. The Convention, for example, allows combatants to deny protections to an occupied territory's residents if those residents threaten security. [35] Thus, when the United States and Great Britain accepted formal occupying power status in Iraq under the terms of U.N. Security Council Resolution 1483, the international community gave them the ability to detain civilians for the overall security of coalition troops.

Israel, too, as an occupying power, has every legal right to pursue Palestinian terrorists and detain Palestinian civilians in the West Bank and Gaza. And, while these detentions cannot be open-ended, provisions to release terrorist suspects "at the earliest date consistent with the security of the State or Occupying Power" are open to interpretation. When car bombs target Iraqi civilians and politicians on the streets of Baghdad, and when suicide bombers attack Israeli buses on the streets of Jerusalem, neither U.S. nor Israeli authorities are under any obligation to release detainees. When push comes to shove, drafters of the Convention recognized that the demands of legitimate military necessity always trump the extension of the treaty's privileges.

Human rights organizations and activists have also demanded that the U.S. government apply the International Covenant on Civil and Political Rights (ICCPR) to Guantánamo detainees. According to Amnesty International, U.S. detention of illegal combatants violates ICCPR clauses against arbitrary arrest or detention. [36] This is disingenuous, however, since the ICCPR also contains a clause that permits governments to suspend its application:

In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States [and] Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. [37]

On November 13, 2001, President Bush promulgated a military order entitled, "Detention, Treatment, and Trial of Certain Non-Citizens in the War against Terrorism." This presidential directive declared that the attacks of September 11, 2001, were "on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces." The order went on to "proclaim a national emergency" in order to prevent terrorists from inflicting "mass deaths, mass injuries, and massive destruction of property" which could "place at risk the continuity of the operations of the United States Government." [38]

The Bush administration has carefully positioned itself within the bounds of international law. Bush's proclamation satisfied both the procedural and substantive prerequisites for suspending the arbitrary arrest clauses of the ICCPR. Human rights advocacy groups may not like it, but international law is not always consistent with their political agendas.

DO HUMAN RIGHTS GROUPS UNDERMINE INTERNATIONAL LAW?

The authors of the 1949 Geneva Conventions were realists who recognized that, by attempting to ban everything, they would stop nothing.

Distinction between permissible and impermissible violence is the keystone of international humanitarian law. The international consensus that certain weapons and tactics should be outlawed depends upon this distinction. Chemical weapons, for example, are clearly illegal. The practical implementation of the rules depends upon soldiers' ability to discriminate between what is military and what is not. In the words of an International Committee of the Red Cross educational pamphlet, "It is a basic principle of international humanitarian law that persons fighting in armed conflict must, at all times, distinguish between civilians and combatants and between civilian objects and military objectives." [40]

Anything that obscures the distinction between combatant and noncombatant undermines the entire foundation of international humanitarian law. Any erosion in the ability to differentiate between civilians and soldiers on the battlefield inevitably would automatically place noncombatants at greater risk. If soldiers are distinctively marked or uniformed, then troops are less likely to mistake civilians for armed combatants and fire upon them. Yet, by seeking to ban detention of illegal combatants in facilities like Guantánamo Bay, this is precisely where the recommendations of the human rights industry would lead.

Political corruption of international law is a serious issue. The U.N. Human Rights Commission, especially under the tenure of Mary Robinson, placed politics over sound legal principle. It is precisely because international jurists and human rights experts remain unaccountable and free to pursue political agendas that the U.S. government has remained vigilant.

The Protocol Additional to the Geneva Convention provides a textbook example of the dangers of such ideological pollution. Drafted at the height of the Cold War, the Soviet bloc and its Third World allies sought recognition for those who fight "against colonial domination and alien occupation and against racist regimes." [41] But the most perniciously politicized provisions of the Protocol appear in Article 44, which bestows automatic POW status on all combatants, including socalled freedom fighters, even if they violate the laws of war. [42] Another clause would permit fighters to retain legal combatant status, even if they fight in civilian clothes. [43] Thus, in one fell swoop, the drafters struck a body blow against the entire system of international humanitarian law. Not only did the Soviet sphere try to emasculate any incentive for combatants to abide by the law of war, but they also sought to obfuscate the vital distinction between combatants and noncombatants.

While the Carter administration signed the 1977 Geneva Protocol, the Reagan administration understood the damage the treaty would do. Because of the drafters' overt political agenda, the United States declined to become party to the additional protocol. [44] The Bush administration is fortunate that the Senate did not ratify the treaty. Had it done so, captured Al-Qa'ida terrorists could shield themselves with the very same civilized guidelines that they hold in such contempt.

Many academics, pundits, and politicians have sought to transform the Geneva Conventions into something they are not. The fundamental violations of international law committed by terrorists, be they in Afghanistan, Iraq, Israel, Spain or Russia, render them ineligible for Geneva Convention protection. To apply the Geneva Conventions universally would be the undoing of those treaties. If there is no price to pay for doffing their uniform or shuttling combatants in Red Crescent ambulances, then soldiers would figure such illegalities to be worth it. Serious violations of the laws of war would become the equivalent of jaywalking. Those advocating universal application of the Geneva Conventions to detainees in Guantánamo Bay are, in effect, encouraging future combatants to transform hospitals into ammunition depots and schools into machine gun nests. The entire regime of international humanitarian law would crumble, and the protections it provides to noncombatants in war would disappear.

The laws of war are imperfect instruments, often "more honored in the breach than the observance." [45] Yet, despite their inherent limitations, they are humanity's best chance to restrain the savagery of war. The key to their effectiveness — and the ability of Western constitutional democracies to fight terrorism — lies in their ability to establish a clear differentiation between licit and illicit means of conducting armed conflict. To blur this distinction and to unnecessarily apply the Geneva Conventions to illegal combatants would erode that distinction and constitute not only a legal mistake, but an ethical one as well.

NOTES:

Ted Lapkin is the Associate Editor of The Review, the monthly journal of the Australia/Israel & Jewish Affairs Council.

The foregoing article by Ted Lapkin was originally published in the Middle East Quarterly, Fall, 2004, and can be found on the Internet website maintained by the Middle East Forum.

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