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The Geneva
trap
By Sonia
Cardenas
(Posted with permission
from Foreign Policy In
Focus)
Ongoing scandals of
prisoner abuse by US forces in Afghanistan and
Iraq are fueled by the Bush administration's
criticism of the Geneva Conventions. The
administration has perpetuated the myth, which
domestic public opinion and the popular media have
accepted, that the Conventions do not entirely
protect suspected terrorists or other non-state
combatants captured abroad. This myth allowed the
administration to invent a new category of
detainees outside the purview of international law
- "unlawful combatants" - in essence legitimating
subsequent mistreatment and abuse. This
self-serving strategy has even distracted critics
of United States policy, who have fallen for the
trap by becoming embroiled in a defensive debate
over who is entitled to "prisoner of war" status,
when they should have been asserting aggressively
the basic rights owed to all human beings
(including suspected terrorists) under
international law. Capitalizing on the ambiguity
and historical specificity of the Geneva
Conventions, the administration of President
George W Bush has defined the terms of a pivotal
debate, while opening the door to human-rights
abuses and disarming potential opponents.
Like all laws, the Geneva Conventions can
be ambiguous and complex, and can reflect their
historical origins. Most of the controversy
surrounding indefinite detention by the United
States, for example, revolves around the scope of
the Third and Fourth Conventions. On the one hand,
the Third Geneva Convention defines "prisoners of
war" (POWs) largely in state-centric terms, as
members of a recognized state's armed forces who
are entitled to special protections. This
definition excludes suspected terrorists captured
in Afghanistan or Iraq, leading administration
figures such as US Defense Secretary Donald
Rumsfeld and Alberto Gonzales to describe the 1949
Convention as anachronistic and vague. On the
other hand, the Fourth Geneva Convention extends
basic human-rights protections (including the
right to a "fair and regular trial") to all
civilians in an armed conflict, whether or not
they are engaged in hostilities.
The
United States has focused exclusively on
determining who is entitled to "prisoner of war"
status (Third Convention), foreclosing an
otherwise viable strategy: to extend the status of
"civilians" to all non-state actors fighting the
United States. Doing so would not preclude
detaining suspected terrorists or restricting
their freedom of movement and communication.
Indeed, they would not have all of the rights
accorded non-hostile civilians, but they would
never have to forfeit their rights to due process
and humane treatment (Article 5, Fourth Geneva
Convention). Once the administration claimed
exemptions to Geneva, moreover, it was free to
invent the category of "unlawful combatants",
further circumventing international legal
obligations to protect non-POWs.
A
strategy of deception
The Bush
administration's reliance on the Geneva
Conventions to justify the differential treatment
of detainees is deeply flawed but unsurprising. It
offers the US government substantial political
payoffs. For example, despite its questionable
legal premises, the overall strategy has resonated
with a post-September 11 public, more attuned to
the killing of Americans and Vietnam-era images of
POWs than to the treatment of civilians under
international law. Furthermore, framing the debate
in terms of who is exempt from the protection of
the Geneva Conventions automatically legitimates
the potential mistreatment of prisoners, a
preferred weapon in the government's
counter-terrorism arsenal. It is a short slippery
slope from labeling prisoners "unlawful
combatants" to subjecting them to indefinite
detention, inhumane interrogation methods, and a
policy of renditions (ie, the extrajudicial
transfer of detainees between governments, often
tantamount to "disappearances"). More broadly, the
administration's paradoxical use of human-rights
language and its actual defiance of international
law is nothing new, illustrated by US opposition
to the Kyoto Protocol and the International
Criminal Court and its unilateral launch of a
putatively preemptive war against Iraq.
Lured by a simplistic legal argument and
fear-inducing rhetoric - "treaties as old as the
Geneva Conventions are inadequate for the new
threat of terrorism" - even the Bush
administration's critics have become mired in a
dispute over the status of prisoners, losing sight
of a more central legal and ethical issue: certain
behaviors are not permissible under any
circumstances or against anyone, even purported
terrorists. This fundamental claim is firmly
ensconced in both international and domestic law.
Not only does the Fourth Geneva Convention extend
basic human rights to all civilians in armed
conflict, but the Convention against Torture, the
International Covenant on Civil and Political
Rights, the Universal Declaration of Human Rights,
and international customary law all bind the
United States to the humane treatment of
prisoners, despite any US reservations and
understandings attached to these treaties or any
appeal to executive prerogative. The foreign
domestic law of the United States places similar
restrictions on the detention of foreigners
abroad, notwithstanding legal machinations after
September 11, 2001.
Ironically, the same
administration that labels the Geneva Conventions
anachronistic has an outdated conception of
international human-rights law. Today's
human-rights norms are highly inclusive; they
guarantee fundamental rights to all human beings
simply by virtue of being human, and some of them
cannot be suspended under any scenario. Denying
suspected terrorists these rights is in principle
no different from other exclusionary policies that
deprive people of their rights on the basis of
race, religion or gender. Bush administration
apologists would surely claim that terrorists
threaten vital national-security interests, and
any temporary suspension of their rights is
justified on grounds of self-defense. The problem
is that rights are always withheld in the name of
a greater good. Violating detainees' rights will
not make the United States safer. It is only
likely to threaten America's reputation, while
engendering greater terrorism and instability.
The Geneva Conventions have proved to be a
red herring, a distraction from real US interests
in the "war on terror". In the public imagination,
the Bush administration has equated the
Conventions with archaic images of "prisoners of
war" and the Red Cross. This depiction was
essential for rationalizing the category of
"unlawful combatants", which has unleashed a
Pandora's box of abuses. This is not an accident.
In the fight against terrorism, the Bush
administration has simply not been willing to
treat all detainees humanely or provide them with
due process. It has preferred to fight terror with
terror. Indefinite detention and inhumane
interrogation procedures are not unintended or
isolated cases; they are the sine qua non
of the US attempt to fight a global war on terror
in an age of internationally recognized human
rights. A selective reading of the Geneva
Conventions has been the perfect cover for
achieving these contradictory, but ultimately
untenable, goals.
Sonia Cardenas
is an assistant professor of political science
at Trinity College, the author of Conflict and
Compliance: State Responses to International Human
Rights Pressure (University of Pennsylvania
Press, forthcoming), and a contributor to
Foreign Policy In Focus, http://www.fpif.org
which made this article
available. |
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