Last time I checked al Qaeda or the Taliban had not sign on yet to the Conventions. Reality: conventions were intended for uniformed enemy soldiers captured during combat. Terrorists don’t qualify.

This was a comment on an earlier blog that I would like to discuss here. This position is far too simplistic, and the intention is to disqualify terrorists from any binding sources of law, which would justify their mutilation and torture in the hands American soldiers and interrogators. The only Geneva Convention which could be legitimately contemplated here is the Fourth Geneva Convention which relates to the use of force and protection regarding civilians. The reason why is because the convention specifies members of the opposing faction as having to be nationals or high-contracting parties of some kind. Civilians and non-state actors are not contemplated in the fourth convention. They are, however, contemplated in the Third Geneva Convention.

The neo-conservative position here is highly misguided. It is my position that a captured enemy combatant (using the phrase generally) must be either a prisoner of war, and as such, covered by the Third Convention, or a civilian, and as such, covered by the Fourth Convention. If states are parties to the Geneva Conventions, no captured enemy can be considered outside the laws of war. Indeed, as the commenter objected, enemy combatants have not signed the Geneva Conventions themselves. Yet this is a trite objection. In fact, enemy combatants cannot possibly sign these conventions, as international law in general only allows that states can be parties to these conventions. Individuals are the subject of the Geneva Conventions, not the object.

This means that states who ratify the conventions apply these protocols unconditionally regardless of whether a particular enemy combatant can be held under any state authority. Lest we have all stateless individuals, refugees, and international criminals fall outside the laws of war to which all civilized nations adhere. The fact that non-signatories to the conventions exist does not mean it is authorized to torture and mutilate them in prisons. No prisoner of war is considered outside the protocols.

Allow me to introduce a hermeneutic device, what philosophers of historical texts call the principle of charity. Having ratified the corpus of these texts, we ought not read them as if to give undue weight to the view that the conventions are “outdated” and hence “non-binding” on non-state actors. Some aspects of the language in the treaty do not specify modern conditions of warfare or international crime, but we should have expected this, and we are still obliged to read the conventions in the most charitable way, salvaging as much of the original intent of the convention as possible.

Consider this analogy. The principle of charity would have us extend the rights of, say, the press, to modern domains of publishing. The limited conditions of production which existed when the Bill of Rights were first drafted should have little affect on the intention of the amendments themselves applied today. There are many ways to publish documents and these are not limited to the use of a printing press. The Bill of Rights, interpreted through the principle of charity, extends the press freedoms to all modern forms of publishing, including video production, photography, online publishing, and blogs. To hold that the freedom of the press only applies to the use of a Gutenberg printing press is extremely non-charitable and contradicts the basic tradition of common law.

Article 4 of the Third Geneva Convention specifies that, in fact, members of militias, resistance movements, or other volunteer corps would count as “prisoners of war” if captured. This is further evidence that a captured enemy in the War on Terror ought to be considered as a prisoner of war, whereby the protocols in the convention are applicable. To say that terrorists ought to be considered “unlawful combatants” or “enemy combatants”, therefore subjecting them to torture, interprets this body of text in the most uncharitable way possible. This is an interpretive fallacy, and violation of the principle of pacta sunt servanda — “the treaty shall be upheld”. This is one of the most basic principles of civil and international law, and to ignore this undermine a nations’ good faith that it will stand by the principles it has agreed to stand by.

It is helpful to enumerate exactly what protocols are at stake here if the conventions do not apply to certain persons captured in any armed conflict.

  • mutilation to prisoners.
  • cruel treatment and torture to prisoners.
  • the prevention of prison inspections by the International Red Cross.
  • medical or scientific experiments on prisoners of any kind which are not justified by medical, dental, or hospital treatment.
  • the use of torture or coercion to secure information of any kind.
  • theft of prisoners’ badges of rank or sums of money, unless an officer authorizes the latter.

There are other despicable acts enumerated in the convention, but this is merely an example of what is permissible if the Geneva Conventions are not in place, or the pact is not upheld.

Now, it may be objected that the protocols within the pact may be upheld whether one considers the conventions binding or not. This is another trite point. It calls into question the very nature of treaty-making itself. The purpose of drafting and agreeing to follow treaties is exactly to hold nations accountable. More fundamentally, the purpose is to have principles set out in black letter law that nations agree to adhere to. If one ignores the text of the treaty, while simultaneously maintaining that the intention of the treaty is being upheld, this is a rather Stalinesque mode of operation. It raises the question of why any nation would withdraw from a pact it previously ratified while claiming it still intends to uphold the pact. Other things being equal, if one intends to uphold the treaty, it would make no sense to withdraw from a treaty, or to make legal reservations.

This raises deep skepticism about the commitments of states to treaties altogether. This would in effect be a Stalinesque foreign policy. The verdict on whether the state will follow the treaty has already been reached, but a show trial is presented as if to give the appearance of objectivity. The show trial, in this case, would be the fact that the state claims adherence to a treaty it no longer is a party to.

The point in posting my thoughts on the Geneva Conventions here is to expose the fact that United States foreign policy is incredibly hypocritical. Neo-conservative imperialists, such as the commenter whose blog claims that he is from “The New Rome: Washington D.C.”, are likewise hypocritical and view law only as an instrument to further empire. Instrumentalism in international relations is morally repugnant and violates another basic principle of the Western legal tradition, one that the Romans themselves held with great esteem, and that is the rule of law itself.