No, international law doesn’t have to be dumped because of al-Qaida

The Geneva conventions may have been written for a postwar world but the fine print allows for every eventuality

What would the sober-minded Washington press corps make of the treatment their secretary of state, Condoleezza Rice, and her British counterpart, Jack Straw, have received in the British press this last week? Where US newspapers favour long disquisitions on the state of geopolitics and the balance of forces in the Gulf, the British papers have been getting steamed up over the Jack and Condi love-in.

Several, including the Guardian, ran photo love stories – with speech bubbles imagining their private thoughts and secret longings. Here was yesterday’s offering from the Sun, on hearing that America’s top diplomat had made the foreign secretary a most generous offer while the two were airborne. “Jack felt a knot in his stomach as she gestured towards her cabin and invited him to make himself comfy in her bed. As he slipped into the sheets, she left to bed down on the floor and Jack’s heart sank. Had he misread the signs?”

I know what plenty of Americans will make of this. It’s proof, they will say, of the immaturity of the British press, unable to imagine a relationship between a man and a woman that is not romantic. It’s all of a piece with a childish, saucy-postcard culture that has sex on the brain. And it shows the sexism of a nation that can’t deal with a female politician except as the love interest in an international soap (one surely called Foreign Affairs).

To which the reply is that the instincts of British tabloids have an uncanny habit of being right. If they think Mr Straw has a crush on Ms Rice, there may be good reason – starting with that spaniel look in his eye whenever he’s with her. But our po-faced US colleagues would be right about one thing. In our amusement at this transatlantic Mills & Boon, we’ve paid insufficient attention to what the two have said. Like this rather revealing exchange on Sunday’s Dimbleby programme.

Straw was asked whether he supported the US government’s refusal to allow the International Committee of the Red Cross access to some detainees held as part of the “war on terror”. Condi at his side, he answered: “We are not the world’s superpower and when we were the world’s superpower, and with those responsibilities, we acted a little differently.” It’s worth reading that sentence closely, for in it Straw implies a new doctrine: superpower exceptionalism. It holds that certain humanitarian norms apply to everyone, except the reigning superpower, which is allowed to do things “a little differently”.

America vs. Human Rights

“The United States has long regarded itself as a beacon of human rights, as evidenced by an enlightened constitution, judicial independence, and a civil society grounded in strong traditions of free speech and press freedom. But the reality is more complex; for decades, civil rights and civil liberties groups have exposed constitutional violations and challenged abusive policies and practices. In recent years, as well, international human rights monitors have documented serious gaps in U.S. protections of the human rights of vulnerable groups. Both federal and state governments have nonetheless resisted applying to the U.S. the standards that, rightly, the U.S. applies elsewhere.”
Human Rights Watch

Which brings us to the debate joined in Britain this week by the defence secretary, John Reid. It’s an argument that’s been raging inside the Bush administration for months and is due to come to a head soon inside the US supreme court. In a speech on Monday, Reid argued that the current architecture of international law – including the Geneva conventions – was designed in the postwar era, for a world in which conflict was solely between states. Today, said Reid, the reality is different: some of the most lethal players are not states, but organisations bent on terror. We cannot be hamstrung in our battle against such forces by a rulebook that’s badly out of date.

He later insisted (as he does on these pages today) that he was not calling for any loosening of the Geneva protections for prisoners of war. Nevertheless, he does share at least the premise of his argument with those Americans who have called for such a change in the Geneva rules. Their starting point, too, is that the emergence of non-state actors has created a situation with which the old set-up cannot cope.

At first glance, they seem to have a strong point. It is quite true that al-Qaida hardly plays by Marquess of Queensberry rules. They do not, as article 4 of the third convention stipulates, wear a “fixed, distinctive sign recognisable from a distance”; they do not carry their arms openly, or conduct their operations “in accordance with the laws and customs of war”. As we discovered last July, this enemy wears jeans and rucksacks and obeys no gentlemanly courtesies. Surely it makes no sense to pretend that Osama bin Laden’s bombers can be treated like Steve McQueen and Dickie Attenborough in The Great Escape.

But this is to underestimate the scope of the Geneva conventions. I spoke yesterday to Professor Jeffrey Jowell, Britain’s delegate to the Venice Commission, which advises the Council of Europe on matters of constitutional law. In 2003 the commission examined whether the Geneva conventions needed adapting for a post-9/11 world – and concluded that they did not. “They go much further than I had first thought,” he told me. “They cover much more than meets the eye.” They might have been written for a 1949 world, but the fine print allows for every eventuality – even for the likes of al-Qaida.

Indeed most experts in the field agree that the situation is, legally speaking, quite straightforward. Faced with terrorists, states can either class them as warriors, who would then be held as prisoners of war, with all the Geneva protections. Or they can decide they are criminals, to be treated by the normal process of law. Even the men picked up in Afghanistan, and now rotting in Guanta’namo, could have been placed in either of these categories, rather than held to constitute a whole new category – “unlawful combatants” – and then duly plunged into a legal black hole.

If that is the choice, then the smart option is obvious. Suspected terrorists should be dealt with by the criminal law, rather than given the warrior status they crave. (Britain understood that when it refused to classify IRA convicts as prisoners of war.) Do that, says the international lawyer Philippe Sands QC, and you gain another practical benefit: you can question suspects, whereas interrogation of PoWs is prohibited under Geneva. What’s more, Arab and Muslim states who couldn’t possibly be seen collaborating with a US “war” could offer legal cooperation, complying with extradition treaties and the like. Once you’re talking the language of law, rather than war, people can help. “The Americans didn’t think any of this through,” says Sands.

A grey area remains. What to do with those foreign nationals deemed a threat, but against whom there is insufficient evidence? You can’t release them and keep them under surveillance, as you could with one of your own nationals. But if you let them return to their home country, they could resume their dangerous activity. A compromise is possible: they could be held as “security detainees”, with PoW status. So long as they were kept in the country in which they were picked up, there need be no violation of Geneva standards.

So John Reid is welcome to call for a debate on these matters. But he should be warned: those who know this field best are satisfied that the current rules are adequate. Those rules and conventions just need to be honoured – even if that means Jack having to talk tough to Condi on that night flight to Baghdad.

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The Guardian, UK
Apr. 5, 2006 Column
Jonathan Freedland

Religion News Blog posted this on Wednesday April 5, 2006.
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