Tuesday, November 01, 2005
Battle Royale at the Pentagon: David Addington v. Common Article 3
As I have previously explained, perhaps the single most important turning point in the torture and abuse scandals was the President's determination, on February 7, 2002, that the United States would no longer uniformly abide by the standards prescribed in Common Article 3 of the Geneva Conventions, which provides, inter alia, that detained persons "shall in all circumstances be treated humanely," and that "[t]o this end," certain specified acts "are and shall remain prohibited at any time and in any place whatsoever"—including "cruel treatment and torture," and "outrages upon personal dignity, in particular humiliating and degrading treatment."
How is it that all discussions of this issue ignore Common Article 2, which clearly states:
Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.
If the Geneva Conventions and their attendant Protocols are inadequate to the task of governing 21st century conflict, then call for their revision.
As they now stand: Al-Qaeda and the insurgency in Iraq routinely violate Convention I, Article 13, Sections 1 and 2; Convention III, Article 4, Section 2; Protocol I, Article 44, Section 3; Convention I, Article 3, and others.
In accordance with Common Article 2, this conduct removes them from the protections afforded by the Conventions, and absolves the United States of observing those protections with regard to them.
The current argument against application of CA 3 recognizes what is explicit in the text of the Conventions.
I suggest that if the Viet Cong had flown airliners into the New York skyline, we would have arrived at this point much sooner.
"I suggest that if the Viet Cong had flown airliners into the New York skyline, we would have arrived at this point much sooner."
Well, the VC *did* conduct a vicious campaign of terrorism in South Vietnam during the early 60s. They didn't use airplanes, but they were fond of such techniques as murdering village chiefs and their families in the middle of the night, then putting the bodies out in public to be found the next morning with placards around their necks saying such nice things as "Thus perish all enemies of the people's power." Oh, yeah, and they killed a lot more civilians than the 3,000 or so who died on 9/11. If we didn't throw aside usual standards of humane treatment for scum would do that, I don't know why we're doing so for those we think may be the accomplices of those who flew airplanes into buildings.
While that's a fine point from an idealiztic perspective, pragmatically, there is a difference between atrocities committed in Southeast Asia and atrocities committed in New York City.
Furthermore, I think you'll find quite a difference between the "official" policies of conduct during the Vietnam conflict and the conduct of soldiers in the field.
The administration's argument against application of Common Article 3 recognizes what is explicit in the text of the Conventions. While that article may reflect "a norm of customary international law," so, too, does Common Article 2. While it may have been "U.S. policy to abide by that norm," the U.S. has also been historically inclined to follow Common Article 2, as illustrated by our soldiers' treatment of Germans as compared to their treatment of Japanese during WWII. The Japanese fared far worse, because their tradtions of combat involved acts of perfidy and savagery that were alien to the European standards war common to the United States and Germany.
The administration has made explicit was has long been practiced by the United States: fight fairly, or our own savagery will know no bounds.
The point of my post is *not* to discuss whether any or all of the detainees in the current hostilities are, or are not, protected by the Geneva Conventions themselves. It is, instead, to explain that the U.S. for fifty years had abided by the *customary* international law norms described in Common Article 3, until February 7, 2002 -- and that there's currently a fight within the Administration about whether to adopt the norms of Common Article 3 as a matter of U.S. policy, at least as far as the armed forces are concerned.
two ways of seeing this disagreement
1. The Moral Dilemma
We claim superiority in the conflict against Al-Quaeda, but to what avail if we engage in the same savagery as they.
2. The Pragmatic Dilemma
Torture provides low quality intelligence, and it's use creates a climate where atrocities on both sides can only escalate.
Why is it no christian ever steps into this debate with the obvious new testament quotes. I would suggest that our national response to 9/11 is still trapped in a pre-rational lust for revenge; rather than a rational hunt for least damage scenarios.
Article Three was written after Article Two (duh) and was designed to deal with situations not covered in Article Two.
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