No Comment — August 12, 2009, 1:28 pm

The Geneva Conventions at Sixty

The Geneva Conventions can be dated back to the start of the movement in 1864, but the current version was signed on August 12, 1949, which means that today the Conventions turn sixty. They are the most widely accepted and followed of all international agreements. The United States played a historically significant role in helping to establish and strengthen these conventions. Yet under George W. Bush, the United States dealt a serious blow to the whole Geneva system by engaging in conduct that demonstrated only contempt for the Geneva rules.

In a comment piece in today’s Guardian, I offer Barack Obama some suggestions on how he can get America back on the right side of the Geneva Conventions:

On the 60th anniversary of the rebirth of the Geneva conventions, there are some easy steps that President Obama could take to demonstrate that his administration takes its obligations under the conventions seriously. He could submit the two additional protocols to the Senate for ratification.

He could legalise his defence department’s extraordinary detentions system. Or he could just give meaning to his repudiation of torture by ending force-feeding at Guantánamo and accepting that the ban on torture applies even in wartime. Any of these steps would at this point be more welcome than his wonderful – but increasingly unconvincing rhetoric. The Bush team dealt the Geneva conventions a grave wound. Healing that wound requires actions that give meaning to the Obama administration’s words.

Update

A law professor asks that I sketch out in more detail what I mean by “legalising his defence department’s extraordinary detentions systems.” That’s a complex matter and my piece was not intended to offer a legal discussion, but here are the major points:

(1) The Authorization for the Use of Military Force, which covers the military operations in Afghanistan, includes implicit authority also for a detention system of some sort. This is essential for U.S. law purposes, but that is only the beginning of the story, because the detention regime must be independently grounded in international law and the law of the host nation.

(2) The law of armed conflict provides authority for the detention of persons who constitute an imminent threat to the safety or security of U.S. forces. However, it does not provide authority for indefinite detention, and particularly not in a setting which is not a conflict in the meaning of the Geneva Conventions.

(3) In the case of the operations in Afghanistan, for instance, legal authority would have four separate potential legs: U.S. legal authority, a Security Council resolution authorizing operations can confer a right for security detentions (as was the case with resolutions issued to cover multinational forces operations in Iraq); international law, which provides a set of minimum standards for operations (particularly Common Article 3 of the Geneva Conventions and the International Covenant on Civil and Political Rights); but finally and most importantly, the detention operations must be reconciled to Afghanistani law. Detainees must have all the substantive and procedural rights that Afghanistani law gives them—including rights to be confronted with charges and to defend themselves before an appropriate tribunal.

(4) The authority of the United States to act and the reconciliation to Afghanistani law should be enshrined in an agreement between the United States and Afghanistan.

This sounds elaborate, but in fact the United States military have maintained detention facilities in foreign countries many times in the past, and usually on the basis of these arrangements, sometimes subsumed in a Status of Forces Agreement.

The debate on this issue has focused on some things that strike me as irrelevant or unnecessary. There is no need for special new Congressional legislation addressing the detention operations. Such legislation would only complicate the executive in his major responsibility—namely, concluding an agreement with the host nation. Also, I do not see a particular role for the U.S. Constitution, including the habeas corpus process and due process. They do act as limitations on what the U.S. military can do in certain circumstances, of course, and they reflect basic values that the U.S. should seek to uphold. But it would be absurd to take them as affirmative standards for a detention operation in Afghanistan—in fact that might even be seen as the projection of U.S. law on to the soil of a foreign country, which could be viewed from an international law perspective as inappropriate.

Share
Single Page

More from Scott Horton:

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

No Comment, Six Questions June 4, 2014, 8:00 am

Uncovering the Cover Ups: Death Camp in Delta

Mark Denbeaux on the NCIS cover-up of three “suicides” at Guantánamo Bay Detention Camp

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

July 2015

Dressed to Kill

= Subscribers only.
Sign in here.
Subscribe here.

Wrong Prescription?

= Subscribers only.
Sign in here.
Subscribe here.

Travel Day

= Subscribers only.
Sign in here.
Subscribe here.

Fugue State

= Subscribers only.
Sign in here.
Subscribe here.

One Day Less

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
The Speakeasy·

= Subscribers only.
Sign in here.
Subscribe here.

“In order to understand how Marty’s could survive as an institution, I returned a year after my first visit to spend a week at what was sure to be the world’s bleakest comedy club.”
Photograph by Mike Slack
Post
The Lost Land·

= Subscribers only.
Sign in here.
Subscribe here.

“I had first encountered some of these volumes—A Swiftly Tilting Planet, The Giver—as a child, and during adolescence, they registered as postcards from a homeland recently abandoned.”
Photograph by the author
Article
Wrong Prescription?·

= Subscribers only.
Sign in here.
Subscribe here.

“Whatever the slogans suggested, the A.C.A. was never meant to include everyone.”
Illustration by Taylor Callery
Post
Introducing the July Issue·

= Subscribers only.
Sign in here.
Subscribe here.

Trudy Lieberman reports on the failed promise of the Affordable Care Act, Sarah A. Topol explores Ukraine’s struggle for a national identity, Dave Madden spends a week in Hollywood’s toughest comedy club, and more

Photograph by Stanley Greene/NOOR Images

Number of insect fragments allowed by the FDA in a standard jar of peanut butter:

153

It emerged that, in trying to count her rings, marine geologists had accidentally killed a 507-year-old clam named Ming.

A resident of Chalk Level Township in Missouri discovered the bodies of three dogs packed inside dog-food bags.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today