What is it that the Bush administration's European critics like so much about civilian casualties? It's a natural question, given the Europeans' evident contempt for one of the purposes of the Geneva Convention: to deter un-uniformed soldiers from hiding among the civilian population — a practice that makes it impossible for an attacking army to distinguish between legitimate targets and noncombatants.
In other words, the Geneva Convention seeks to protect innocent civilians by keeping soldiers in uniform and by defining those combatants who don't wear uniforms as being outside the rules of warfare and undeserving of the privileges afforded to legitimate prisoners of war.
During the bombing in Afghanistan, we heard a lot from the Europeans about collateral damages, so it is strange that they should now turn around and be willing to overlook the chief cause of civilian casualties in Afghanistan: al-Qaida and Taliban troops who not only didn't wear uniforms but are actively hiding among civilians.
One might even think that the Europeans would be especially eager to define al-Qaida and the Taliban as outside the rules of civilized combat, given (again) the Europeans' understandable concern with protecting civilian populations from the depredations of war.
But that, of course, would require following a consistent moral principle rather than simply knee-jerk anti-Americanism: i.e., the Americans are wrong when they bomb terrorists who are hiding among civilians and wrong when they try to follow rules to discourage terrorists from hiding among civilians.
This is just one of the aspects of the controversy over Guantanamo that is maddening in its absurdity and dishonesty. Not only has al-Qaida not signed the Geneva Convention, al-Qaida and the Taliban aren't even governments. Remember, it wasn't just the United States that said that the Taliban wasn't the legitimate government of Afghanistan; even the United Nations took that position. At its heart, the Geneva Convention, as Cornell's Jeremy Rabkin explains, is about reciprocity between governments — you treat our prisoners decently, we'll treat yours decently. Saying it applies to al-Qaida and Taliban prisoners is like saying the START II agreement should apply to relations between the U.S. and Belgium, or — even more aptly — to U.S. relations with the Hell's Angels. Because al-Qaida and the Taliban are, in essence, armed, criminal gangs and nothing more.
Also, if they really are lawful combatants, as the administration's critics seem to suggest, that would lead toward a nasty conclusion: that the attacks on the Khobar Towers, the USS Cole and (maybe) even the Pentagon were justified acts of war carried out on legitimate military targets, and so the perpetrators can't be tried for their actions any more than a U.S. pilot could be tried for blowing up a Taliban arms depot.
For crystal-clear thinking on these issues, the best source is Ruth Wedgwood, a law professor at Yale and Johns Hopkins. She considers the whole Geneva Convention controversy a bit of a sideshow.
According to Wedgwood, even if the convention applied (which she insists it doesn't), it still allows for interrogation of prisoners, doesn't require you to jeopardize camp security if it would be endangered by providing certain amenities (i.e., the Geneva Convention isn't a suicide pact), and allows for military trials.
Even many conservatives have been puzzling over the question of what body of law these prisoners would be tried under. Wedgwood explains that this area tends to be governed by customary law, especially the customs that have grown up around the Hague Convention of 1907. The Guantanamo prisoners can be held to account for "unlawful belligerency" (just what it sounds like), for violating "the rules of proportionality" (even if you attack a military target, it has to be done with requisite care not to kill civilians), and other violations of "the rules and customs of war."
What if none of the prisoners in Guantanamo directly participated in terrorist attacks? It doesn't matter. The Anglo-American concept of conspiracy is quite broad, Wedgwood says, and al-Qaida could easily be considered a "single purpose entity" — like a "RICO enterprise" in the U.S. — devoted to murder and mayhem.
Simply joining al-Qaida would be the crime. Of course, the Europeans still need to figure out if it's that, or joining the U.S. military, that's the worst offense.
Scripps Howard News Service