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July|August 2004

War's Conventions

By Lincoln Caplan

THE WAR IN IRAQ WAS SOLD TO US as a moral undertaking. Even when the Bush Administration offered other rationales for the conflict, it positioned the United States as the liberator of an oppressed people from an immoral dictator. The photographs of systematic "inhumane and degrading treatment," as the International Red Cross called the cruelty at Abu Ghraib, shook this foundation. The brutal misuse of power by American guards over prisoners in their charge, some of it by deliberate physical abuse—torture—to help get information, was antithetical to our liberal democracy's special regard for individual rights. The images of Americans tormenting Iraqis in chambers once favored by Saddam Hussein knocked our country off the moral pedestal it had built for itself.

The Geneva Conventions were drafted in the wake of World War II to address deficiencies in the law of war, such as the inadequate protection of individuals under an enemy's sway and the lack of clarity about when that law's safeguards should apply. There are four conventions, or treaties, and the U.S. ratified them in 1955 and made them the law of the land. With its best-known prohibitions against "cruel treatment and torture" and "outrages upon personal dignity, in particular, humiliating and degrading treatment," the third convention spells out rules for the treatment of war prisoners.

Since September 11, the administration has skirted the conventions where it could, most brazenly at the detention center in Guantanamo Bay, Cuba. White House counsel Alberto Gonzalez claimed in a memo to President George W. Bush that the new war rendered the conventions' limits on interrogating prisoners "obsolete." In the blockbuster cases of the recent Supreme Court term, the court considered the due process owed to individuals captured in the war on terrorism. It further dealt with the administration's contention that these individuals are enemy combatants, not prisoners of war, and that they warrant scant protection under the Geneva rules as well as the Constitution.

Because the Bush Administration has treated the wars on terrorism and on Iraq as the same, it's remarkable that everyone in the chain of command who commented on the Abu Ghraib abuses, from Secretary of Defense Donald Rumsfeld and General Richard Myers, Chairman of the Joint Chiefs of Staff, on down, said that the Geneva Conventions apply. There were competing accounts about whether the soldiers were made aware of the rules: A U.S. military police reservist, Spec. Sabrina Harman, facing court martial for prisoner abuse said she never saw a copy of the conventions while serving as a guard. On the other hand, the head of Army intelligence, Lt. Gen. Keith Alexander, declared, "We train all our interrogators in the law and the Geneva Conventions, and they're held to that standard." However they were invoked, the conventions were treated as a given in a volatile state of affairs.

The conventions may be the most solemn example of a set of rules so widely recognized that it would be unthinkable not to obey them as international law. Including the United States, 191 countries have adopted them. Having tried to flout the conventions in its prosecution of the war on terrorism, the Bush Administration responded to the Iraq scandal by insisting on its deep commitment to the conventions and, more fundamentally, on its fidelity to international law as proof of its uprightness.

The administration's record on major choices about international law belies that claim. President Bush set the tone early in his tenure by refusing to ratify the Kyoto Protocol for the reduction of greenhouse gas emissions, which the U.S. had already signed along with 83 other countries. He then withdrew President Bill Clinton's signature from the International Criminal Court treaty supported by 94 other countries. And, of course, he waged war on Iraq, which was arguably illegal because the United Nations resolutions that Bush relied on didn't authorize the use of force. This pattern has underscored the president's well-established habit of acting as if there's one standard for other nations and a different standard for the U.S., which we are free to choose instead because of our unrivaled power.

Despite the Bush Administration's rhetoric about the Iraq war, its claims to moral purpose have often taken a back seat to bald assertions of American power. The administration's approach to international law has exemplified this unilateralism and expediency. International law has moral force—whether or not it serves Bush's interests. But even by its own calculus of expediency, the administration should have proclaimed its obedience to the Geneva Conventions earlier and more often, so that when the time came to apportion responsibility for what happened at Abu Ghraib, the question wouldn't be what orders were given—but why they were disregarded.

Lincoln Caplan is the editor and president of Legal Affairs.

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