Andrew McCarthy Discovers the Geneva Conventions

By Scott Horton

National Review Online's legal stalwart, former Southern District prosecutor Andrew McCarthy, had an interesting and very lengthy post yesterday on the Geneva Conventions and their application to the now mercifully concluded crisis involving fifteen British sailors and marines seized by Iran. It's encouraging to see McCarthy cite and argue for enforcement of the Geneva Conventions–but then we get to the details, and see there hasn't been much of a conversion after all.

McCarthy's launching point is the Iranian government's decision to march British sailors and marines in front of camera for staged apologies and confessions. The one female in the contingent wore a scarf for the event and was the target of some venomous comments from Iranian officials, including President Ahmadinejad. McCarthy says that this is a violation of the Third Geneva Convention's prohibition on subjecting POWs to public ridicule. Is he right about that?

I would argue that he is right. But this is a case that demonstrates where lawyers go wrong. If we would adopt the niggling style of analysis that McCarthy uses (a style he shares with his colleagues John Yoo and David Addington), then we'd immediately face an argument from the Iranians that the Geneva Conventions don't apply. Yes, the United Kingdom and Iran are both parties, but there is no state of hostilities between them. Therefore the Third Geneva Convention technically would not apply to this incident–at least not until a war gets underway.

But who needs to talk about the Geneva Conventions? This is a question of American traditions, or at least of traditions before Bush. These are values upon which the Republic was built, and upon which it established its moral leadership on the world stage. One of those traditions was that prisoners taken in wartime are treated humanely. While lawyers can and should parse the text, the American tradition has been to uphold the high values of the Conventions–even when a clever lawyer could come up with a technical evasion, like the one I just cited. This is the difference between the Abraham Lincolns and the Dwight David Eisenhowers on one side and the John Yoos and David Addingtons on the other, or as you might put it, between the real Republicans and the Banana-Republicans. The fact of the matter is that clever lawyers can always come up with reasons not to apply the Geneva Conventions. The question to ask is: Why should they?

The specific Geneva provision in question here–against public ridicule or humiliation of detainees–was scrupulously upheld by the United States for over fifty years. In the last five years, however, the U.S. track record is spotty. In Iraq, the mutilated bodies of Saddam Hussein's two sons were photographed and the images were disseminated all over Iraq by the U.S. military–a clear violation of the rule. Then Saddam Hussein himself was photographed in his jockey shorts, unshaven and unkept, and those pictures were disseminated. All of this occurred with explicit U.S. military authorization, and all of it violated the prohibition of the Third Geneva Convention on humiliation; indeed, this was done for psy-ops value, in order to humiliate.

These practices undermine the Conventions and make it progressively less likely that other parties will observe the restriction, especially parties which come into conflict with U.S. forces. In the end these practices had negligible propaganda value to the United States, but immediately endanger U.S. soldiers who are taken prisoner in future conflicts. And they undermine the moral authority of the United States in calling for compliance in circumstances like the one here. All of which makes clear: the traditional U.S. position is right; the Bush deviation is wrong.

In much of the balance of his post, McCarthy appears as the eternal defender of lost causes. He tells us that "al Qaeda operatives apprehended in our ongoing war, are presumptively not covered by Geneva." But of course, all combatants taken on a battlefield are presumptively covered as POWs. The text couldn't be more clear. I agree with McCarthy that those who can be shown to be al Qaeda members shouldn't get POW treatment, but that's different from saying "not covered by Geneva." Indeed, the Supreme Court has ruled on this point in Hamdan, and McCarthy's viewpoint (which is to say the Bush Administration's viewpoint) was rejected, as it should have been.

McCarthy also decries the idea that "Protocol I, despite our express refusal to be bound by it, has now somehow transmogrified into binding international law." Of course, the United States–and indeed the Bush Administration–has accepted the idea that Protocol I has become binding international law. The United States merely took an exception to the provisions that give POW status to national liberation groups and other nontraditional formations. That's an appropriate exception from my perspective. But the balance of the Protocol contains many other protections–for civilians, for instance–which the United States has agreed to be bound by (and in some cases for which the United States itself first advocated).

I would like to commend a test to McCarthy and his friends. Ask yourselves: What would Ike do? I haven't run into a case where I disagreed with Ike about the application of Geneva. But his spirit has gone missing from the ranks of those who call themselves Republicans today.