The Geneva Convention Question
By Trevor Thompson
Jun 7, 2004

Recently, Al Gore delivered a fiery speech in which he lambasted the Bush administration for a number of transgressions, including lying to the American people, bungling the war on terror, breaching the Geneva Conventions, endangering national security, creating an unprecedented hatred of Americans worldwide, destroying civil liberties, and betraying the very essence of American values. It was a speech as startling in its unbridled hostility as it was heartening in its honesty — an "extraordinary" speech, according to the New York Times, the kind of impassioned rhetoric that impels people to act, something American politics has been missing for some time. "Those who agree must look for ways to defend the honor and perhaps the very identity of the United States as we've know it," wrote the New York Times, while "those who disagree with Mr. Gore should challenge him on his facts."

Not surprisingly, there are plenty of people who disagree with him, including the popular right-wing talk show host, Rush Limbaugh, whom Gore gave the dubious honor of singling out for embodying a "new political viciousness" in his callous treatment of the Abu Ghraib abuse scandal. In response, Limbaugh did exactly what the Times suggested: He challenged Gore on his facts, particularly on Gore's accusation that the Bush administration was willfully violating the Geneva Conventions in the war on terror.

"He's flailing around wildly," Limbaugh complained on his radio show the day following Gore's speech. "He's making statements that are flat-out lies in this speech . . . for example, the Geneva Conventions. I don't know how many of you know this, the Geneva Conventions do not protect terrorists. They protect soldiers who serve under a nation who wear uniforms who carry their weapons openly . . ."

Wait a minute — the Geneva Conventions don't protect terrorists? If this is true, then maybe it isn't such a big deal that American forces treated the prisoners at Abu Ghraib so harshly. The pictures of naked bodies piled in a pyramid or of prisoners being sexually assaulted with chemical light sticks are distasteful, sure, but war in general is a nasty business. And this new war, this war on terror, is on a whole new level of nastiness. As the former director of the CIA counterterrorist unit testified to Congress in 2002, "There was a before-9/11 and an after-9/11 . . . After 9/11 the gloves came off."

So, who's right? Do the Geneva Conventions protect the prisoners captured by the U.S. during the war on terror, or don't they?

The Geneva Conventions were signed in 1949 and remain the most popular regulations concerning the laws of war. There are four conventions: Convention I addresses the treatment of wounded and sick soldiers in the field of battle; Convention II includes the treatment of wounded and sick soldiers at sea; Convention III regulates the treatment of Prisoners of War; Convention IV concerns the treatment of citizens in times of war.

The Convention under debate is the third Convention, specifically Article 3, which establishes the guidelines for POW treatment, stating they should be treated "humanely, without any adverse distinction founded on race, color, religion or faith, sex, birth or wealth, or any other similar criteria." It then defines behavior against POWs that is prohibited, the most relevant to the current situation being "outrages upon personal dignity, in particular murders of all kinds, mutilation, cruel treatment and torture."

It doesn't take a Congressional Commission to determine that the photos at Abu Ghraib detail examples of "outrages upon personal dignity" and therefore a violation of the Geneva Convention. No one (except Rush Limbaugh, who refers to it as "good old American pornography') is arguing that the treatment of the prisoners is cruel and humiliating. The point of contention is whether these prisoners — and any prisoners in the war on terror — deserve the status of POW. Rush Limbaugh and like-minded individuals say they do not because, according to Article 4 of the third Convention, a POW is defined in part as " having a fixed distinctive sign recognizable at a distance . . . of carrying arms openly . . . of conducting their operations in accordance with the laws and customs of war."

Clearly, Al-Queda and other terrorists do not conduct their operations in accordance with the laws and customs of war. A suicide bomber does not openly carry arms. A hijacker of a plane does not wear a uniform identifying him as such. Furthermore, the Geneva Conventions, like most treaties, structure legal relationships between Nation States, not between Nation States and private interest groups and non-state actors, such as Al-Queda.

So, case closed. Perhaps Al Gore should stop harping on Bush for dishonoring the Geneva Conventions, because, according to these same conventions, the terrorists do not qualify for POW status. Except things are never so simple. The Geneva Conventions are long and complicated, and while Article 3 and 4 are the most discussed, there are over 100 articles in the third Convention alone, all of which discuss the status and treatment of a POW. In fact, one needs to look no further than Article 5 to see that the definition of a POW is not as clear-cut as Mr. Limbaugh would have us believe:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Judging from the national and international furor rising from the Abu Ghraib photos, there appears to be plenty of doubt about whether prisoners in Iraq should be treated as POWs. As of yet, however, there has been no move to set up a "competent tribunal" to make a final decision. Instead, the Bush administration has focused on seeking ways to circumvent the Geneva Conventions, ostensibly because the war on terror is a new kind of war necessitating the gathering of information quickly to prevent future terrorist attacks. In the words of the top White House lawyer, "In my judgment, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions . . ." In other words, there is no room for the Geneva Conventions in this new war.

Perhaps more importantly, especially with the circulation of the Abu Ghraib photos, if the Bush Administration can legally prove the Geneva Conventions do not apply to terrorists, they avoid the risk of criminal trial under the War Crimes Act. The War Crimes Act is a little-known act passed by Congress in 1996 which prohibits grave breaches of the Geneva Convention, such as "outrages against personal dignity."

So, back to the original question: Who's right, Gore or Limbaugh? Do the Geneva Conventions apply to terrorists? It's debatable. It's possible, however, that we are asking the wrong question. Maybe the question should be: Regardless of whether or not Al-Queda and suspected terrorists are legally accorded POW status by the Geneva Convention, should the United States treat them as such?

Consider that the intention of the Geneva Conventions is not to foil the war on terror (a view Bush's legal team seems to hold) but to regulate warfare — to apply some sense of humanity to the most brutal of human activities. Consider also (as Secretary of State Colin Powell urged the president when he learned of his intention to toss the Geneva Conventions) the fact that since the Geneva Conventions were signed in 1949, the United States has never denied their application in any war, despite several opportunities to do so. Do we really want to abandon that tradition of decency and humanity? Is that the identity we, as Americans, want for our country? In the wake of anti-American sentiment following the invasion of Iraq and the Abu Ghraib prison scandals, shouldn't we be imposing standards of morality rather than ridding ourselves of them?

At the end of the day, that is what Gore's speech was really about: America's reputation, its morality, the principles on which it stands — principles which for the last several decades have been proudly aligned with those of the Geneva Conventions. To abandon one is, in some sense, to abandon the other.

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