Law in a time of terror, continued
Detention and torture have already arisen, of course, as controversial issues in the U.S. war on terror. What does international law have to say about them? The revelations of torture at Abu Ghraib have been broadly, if not universally, condemned as apparent violations of international law. And there have been other reported infractions. "You can't withhold the names of POWs from the ICRC [International Committee of the Red Cross]," Vagts said. "The ICRC is entitled to know who they are so they can inform the next of kin and keep a registry and get to talk to the prisoners. We violated that. And then, of course, there was the unpleasant case of an Iraqi general who turned up dead in our custody."
"We seem to have gone into Iraq in confusion," Vagts said. "For example, we declared that Saddam was a POW, but before we did that, we published these photographs of him being worked over by a doctor. You're not supposed to publish photos; that's against the Geneva rules for a POW. They wanted to make sure that the Iraqis knew that this guy was helpless and couldn't defend himself. But if he was a POW, that was against the rules."
While some prisoners at Abu Ghraib are clearly covered as POWs by the Geneva Conventions because they have been detained as participants in what is, at least nominally, a traditional interstate war, those being held at Guantanamo Bay, Cuba, are a mixed set. One prisoner group there comprises people who are suspected Al Qaeda members, and the other is made up of suspected members of the Taliban from Afghanistan.
"The president determined that the Geneva POW Convention did not apply to Al Qaeda because it is a nonstate actor," Goldsmith said. "As for the Taliban, though, Afghanistan is a state party to the treaty. So the POW Convention does apply to the conflict with Afghanistan armed forces--the Taliban. But the POW Convention assumes that, to get its protection, the enemy must satisfy certain criteria. The U.S. government determined that the Taliban were unlawful combatants because they didn't distinguish themselves from civilians, they didn't carry their arms openly and they didn't comply with the laws of war. And--this is a fine but important distinction--even though the POW Convention did apply in the war between Afghanistan and the U.S., the Taliban forfeited its protections."
The term "unlawful combatants" used to describe the Taliban group at Guantanamo has drawn attention as a questionable designation that some observers suspect provides the United States with an excuse to skirt international law in its treatment of Taliban detainees. Goodman, however, says that term is, in fact, well-established as a relatively old category in the laws of war. "[It] can be conceptualized as an individual or civilian who unlawfully takes up arms," he said. "The question is what implications result from that status besides the loss of POW status. The ICRC and the International Criminal Tribunal for the former Yugoslavia maintain that all individuals are either covered by the POW Convention or the Civilians Convention [of the Geneva Conventions]--that there is no gap. While there are potential problems with that broad reading, unlawful combatants are covered by Article 3 in all four Geneva Conventions. In addition, the Civilians Convention contemplates unlawful combatants, as evidenced by its security proviso allowing states to suspend some rights protections for such individuals."
Dershowitz criticized the approach taken at Guantanamo as "too wholesale" in its intake of combatants: "International law requires a relatively fast decision about the status of people--whether they're military combatants, prisoners of war, criminals, spies. We didn't do that."
The U.S. Supreme Court has stepped in to say that prisoners can challenge their detentions in U.S. civilian courts. But as Vagts points out, the High Court only talked about screening procedures; it didn't address the issue of what can be done with terrorists after that. "Of course, terrorists and unlawful combatants are sort of outside the rules on warfare," Vagts said. "They don't get to be prisoners of war. All they get is a sort of bare level of treatment." Furthermore, he said, "it is not clear under any of these rules how long you can hold people if you don't charge them with a crime." He believes that an international convention should be organized to sort out the problem.
In the meantime, Vagts and his colleagues agree, now that the United States has declared war on a stateless threat of terror, new answers on how to conduct the campaign must be developed.
"We have to come up with a set of rules that is appropriate to apply to organizations that are difficult to identify and that flagrantly violate the laws of war," Goldsmith said. "We have to come up with ways that authorize states to respond adequately to the terrorist threat while at the same time come up with appropriate limits on the powers to respond."
Dick Dahl is a freelance writer who lives in Somerville, Mass.
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