US Defense Secretary Donald Rumsfeld asserts that Iraq has violated the rules of war by broadcasting harsh footage of US military casualties and graphic displays of frightened POWs being “interviewed” on Iraqi TV. President Bush condemns this public humiliation of the world’s most powerful military, and vows his administration will keep score. Anyone who so much as looks at a POW cross-eyed can expect to be hauled into court or before a military tribunal for a taste of victor’s justice once the shooting is over.
Such filming of POWs is indeed a violation of the Geneva Convention — the third one, to be exact. But can it be any surprise that Saddam Hussein has not followed the rules? Isn’t that why US troops are there in the first place? Nobody except Bush and Rumsfeld seems surprised that Saddam would disobey the rules. Rules are for gentlemen and Saddam is anything but a gentleman. He is a fierce and tribal strongman. Play by the rules? If and when it suits his pleasure. Right now, it doesn’t. Which makes this conflict evenly matched.
Like Saddam, the United States has played by its own rules for a long time. Vietnam. Iran. Cuba. Guatemala. The Dominican Republic. Grenada. Panama. Rumsfeld himself set the pace for violation of the Geneva Convention when he designated those fighters taken prisoner in Afghanistan as “unlawful combatants” rather than POWs. The US paraded hooded, shackled, and blindfolded Muslims before a press that quickly lost its liberal leanings. These Muslim prisoners live in locked metal cages, exposed to all the elements, in Guantanamo, Cuba. Human Rights Watch reports claim that US interrogators beat and suspended prisoners from the ceiling to make them “talk.” They are held incommunicado to all except their captors. No family and no lawyers are allowed to see them. They are joined in limbo by 6,000 other Muslims who were simply whisked off the streets by US authorities alleging they overstayed their visas, worked illegally, took a photo of the Statue of Liberty or a bridge, or knew someone who knew someone who has a relative who knows someone “connected” to Al-Qaeda or the Taleban.
Actually, the Geneva Convention does not let Rumsfeld make pronouncements on prisoners’ status. Captured combatants whose status is disputed “shall enjoy the protection of the present convention until such time as their status has been determined by a competent tribunal.” Such a tribunal need not be international. Any regular US court capable of applying the law of the land, which includes international law, would be fine. But no such tribunal looks to be conferring anytime soon.
Nation-states often bend the rules. When Bush bombed and invaded Afghanistan after Sept. 11, 2001, nobody blinked an eye. Bush’s military strikes fell, realistically, within the ambit of self-defense and retaliation, long a part of customary international law. But has the United States now confused self-defense with self-interest? When France and Germany pointed out this possibility, and tried to rein Bush in to follow the UN Charter’s “old” rules, Rumsfeld dismissed them as “old Europe.”
But the Geneva Convention is an “old European” idea. It goes back to Hugo Grotius, a 17th century Dutch theologian and lawyer who declared that natural laws of basic morality should prevail even in wartime. Grotius’ ideas were built upon during the Enlightenment by jurists and philosophers who argued against killing POWs, and promoted freeing rather than enslaving them once hostilities had ended. By the end of the 19th century, a deadly combination of obstinance, trench warfare, and technological innovation, the Gatling gun and poison gas made combat deadlier than ever. In 1859, Henri Dunant, a Swiss businessman, traveled to Italy during the Piedmont war for Italian independence against Austria, and accidentally found himself at the battle of Solferino where the wounded, having only one doctor for over 1,000 soldiers, had been left to die. Horrified, Dunant urged local inhabitants to tend to the survivors and turned nearby churches into camp hospitals. Dunant’s work led to the founding of the International Red Cross. To protect Red Cross medics, he persuaded the Swiss government to hold a 16-nation conference which produced the first Geneva Convention in 1864. The United States was one of only four countries to leave the convention without ratifying it. Today the Conventions encompass nearly all the Western international laws on wartime conduct.
They are gentlemen’s rules, made to settle gentlemen’s arguments, “old Europe” having exhausted its savage instincts. But savagery and war naturally go together. So it is to the “new” Europe, fresh from its 1919 slumber, that the United States now appeals for support in Iraq. The United Kingdom is eager to help, but finds itself less a gentleman than a gentleman’s valet, holding the coats while the US and Iraq pace off for their duel. When the UK thought it best to wait for a new UN resolution or at least a more complete international consensus, Bush snapped that he needed neither the resolution nor the UK’s help, and would go it alone if the UK didn’t sit up, bark, and happily trot along. The irony is that Americans want to be loved and appreciated for their efforts to topple the current Iraqi “regime,” and put something more wholesome, more American, and therefore better, in its place. “When are the Iraqi people going to start loving us?” a Fox News reporter asked a startled retired general who makes a handsome second salary as a commentator. Perhaps when the US starts following the rules again.
— Sarah Whalen teaches at Loyola University School of Law, New Orleans; she is an expert in Islamic law and taught Islamic law at Temple University School of Law.
Arab News Opinion 2 April 2003
