Amateur Megalomania

Some people are still living in August of 2001.

SCOTUS has ruled.

The Supreme Court ruled Thursday that President Bush overstepped his authority in ordering military war crimes trials for Guantanamo Bay detainees.

The ruling, a rebuke to the administration and its aggressive anti- terror policies, was written by Justice John Paul Stevens, who said the proposed trials were illegal under U.S. law and international Geneva conventions.

Here we go again with the Geneva conventions. From the International Rules about Soldiers:

The Geneva Conventions and supplementary protocols make a distinction between combatants and civilians. The two groups must be treated differently by the warring sides and, therefore, combatants must be clearly distinguishable from civilians. Although this obligation benefits civilians by making it easier for the warring sides to avoid targeting non-combatants, soldiers also benefit because they become immune from prosecution for acts of war.

For example, a civilian who shoots a soldier may be liable for murder while a soldier who shoots an enemy soldier and is captured may not be punished.

In order for the distinction between combatants and civilians to be clear, combatants must wear uniforms and carry their weapons openly during military operations and during preparation for them.

The exceptions are medical and religious personnel, who are considered non-combatants even though they may wear uniforms. Medical personnel may also carry small arms to use in self-defense if illegally attacked.

The other exception are mercenaries, who are specifically excluded from protections. Mercenaries are defined as soldiers who are not nationals of any of the parties to the conflict and are paid more than the local soldiers.

Combatants who deliberately violate the rules about maintaining a clear separation between combatant and noncombatant groups — and thus endanger the civilian population — are no longer protected by the Geneva Convention.

To me, the standard terrorist, insurgent, al-Qaeda, whatever, tactic violates these principles: they don’t wear uniforms, they don’t strive to avoid civilian involvement, and they certainly don’t treat their prisoners according to the Convention. It is clear that these fighters cannot reasonably claim Geneva protections under these terms.
The Geneva Conventions were ratified in a world of national, mechanized armies capable of devestating one another as well as the innocent caught in between. It never intended to address the modern era of extra-national forces preying upon civilians and operating outside of the norms of ‘traditional’ warfare. Certainly the Conventions have a place in a conflict between two nation-states willing to adhere to the rules of war. But to continue to claim that the Convention has a role in the War on Terror is both dangerous and eroding.

The primary element at question here isn’t torture, but trial. The Bush administration wants to place these prisoners under trial and seek appropriate punishments. The Convention forbids the trial of enemy soldiers for activities of war (beyond murder of civilians or other crimes against humanity). Therefore, this ruling is striking at our ability to prosecute these thugs for their actions. If we must treat them as enemy soldiers under the Geneva umbrella, the only course of action that remains for us is indefinite incarceration until we can repatriate the prisoners at the end of declared hostilities.

Obvious questions follow : with whom do we negotiate an end of hostilities? To which ‘army’ does each prisoner belong?

We’re in a different world now. Just because the enemy doesn’t line up in uniform and operate from a sovereign nation doesn’t mean we can’t engage them in battle. Instead of seeking to apply what is quickly becomming an outmoded treaty, perhaps it is time to draft a new version of the treaty that permits us to properly engage in the war, protect our civilization, while striving to adhere to the values we cherish (and the values our enemies seek to destroy).

Disagreeing with the military tribunal process is certainly a respectable position. Envoking the Convention is something else entirely.

UPDATE – better words than mine can be found here.

Filed under: The War