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.
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.