[Mb-civic] COMMENTARY Rewriting the Laws of War for a New Enemy The Geneva Convention isn't the last word.

[Michael Butler]

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http://www.latimes.com/news/opinion/la-oe-yoo1feb01.story
COMMENTARY
Rewriting the Laws of War for a New Enemy
The Geneva Convention isn't the last word.
By Robert J. Delahunty and John C. Yoo
Robert J. Delahunty is a law professor at St. Thomas University Law School
in Minnesota. John C. Yoo, a law professor at UC Berkeley, is a visiting
scholar at the American Enterprise Institute. They w

February 1, 2005

When the Senate considers Alberto R. Gonzales' nomination for attorney
general this week, his critics will repeat the accusation that he opened the
door to the abuse of Al Qaeda, Afghan and Iraqi prisoners. As Justice
Department attorneys in January 2002, we wrote the memos advising that the
Geneva Convention on prisoners of war did not apply to the war against Al
Qaeda, and that the Taliban lost POW privileges by violating the laws of
war. Later that month, Gonzales similarly advised (and President Bush
ordered) that terrorists and fighters captured in Afghanistan receive humane
treatment, but not legal status as POWs.

"Human rights" advocates have resorted to hyperbole and distortion to attack
the administration's policy. One writer on this page even went so far as to
compare it to Nazi atrocities. Such absurd claims betray the real weaknesses
in the position taken by Gonzales' critics. They obscure a basic and
immediate question facing the United States: how to adapt to the decline of
nation-states as the primary enemy in war.

The Geneva Convention is not obsolete ‹ nor, despite his critics, did
Gonzales say it was. It protects innocent civilians by restricting the use
of violence to combatants, and in turn give soldiers protections for obeying
the rules of war. Although enemy combatants may have killed soldiers or
destroyed property, they are not treated as accused criminals. Instead,
nations may detain POWs until the end of hostilities to prevent them from
returning to combat.

The Geneva Convention provisions make sense when war involves nation-states
‹ if, say, hostilities broke out between India and Pakistan, or China and
Taiwan. But to pretend that the Geneva Convention applies to Al Qaeda, a
non-state actor that targets civilians and disregards other laws of war,
denies the reality of dramatic changes in the international system.

Shortly after World War II, nations ratified the Geneva Convention in order
to mitigate the cruelty and horror of wars between the large mechanized
armies that had laid waste to Europe. Now, the main challenges to peace do
not arise from the threat of conflict between large national armies, but
from terrorist organizations and rogue nations.

To believe that the Geneva Convention should apply jot-and-tittle to such
enemies reminds us of the first generals of the Civil War, who thought that
the niceties that were ideals of Napoleonic warfare could be applied to
battles fought by massive armies, armed with ever more advanced weapons and
aided by civilian-run mass-production factories and industry. War changes,
and the laws of war must change with them.

Nations have powerful incentives to comply with the laws of war contained in
the Geneva Convention. A United States or a Germany will care for captured
prisoners, because any ill treatment could trigger retaliation against its
own soldiers.

A nation will be concerned with public opinion, both to maintain popular
support for its war effort and to keep its allies. Nations have leaderships
that can be held accountable, either legally or politically, after the war.
Nations have military and civilian bureaucracies that interpret and follow
uniform standards of treatment.

Unfortunately, multinational terrorist groups have joined nations on the
stage of war. They operate without regard to borders and observe no
distinction between combatants and civilians. Our weapons for controlling
hostile states don't work well against decentralized networks of suicidal
operatives, with no citizens or borders to defend.

The problem of terrorist groups has been compounded by the emergence of
pseudo-states. Pseudo-states often have neither the will nor the means to
obey the Geneva Convention. Somalia and Afghanistan were arguably
pseudo-states; Iraq under Saddam Hussein was another.

Pseudo-states control areas and populations subject to personal, clan or
tribal rule. A leader supported by a small clique (like Hussein and his
associates from Tikrit) or a tribal faction (like the Pashtuns in
Afghanistan) rule. Political institutions are weak or nonexistent. Loyalties
depend on personal relationships with tribal chiefs, sheiks or warlords,
rather than allegiance to the nation.

Quasi-political bodies such as the Iraqi Baathist Party, the Taliban or even
the Saudi royal family exercise government power. Defeat of the "national"
leader or clique typically results in the complete disintegration of the
regime.

Multinational terrorist groups and pseudo-states pose a deep problem for
treaty-based warfare. Terrorists thrive on killing civilians and flouting
conventional rules of war. Leaders like Hussein and the Taliban's Mullah
Mohammed Omar ignore the fates of their captured soldiers. They have nothing
riding on the humane treatment of American prisoners.

A treaty like the Geneva Convention makes perfect sense when it binds
genuine nations that can reciprocate humane treatment of prisoners. Its
existence and its benefits even argue for the kind of nation-building that
uses U.S. troops and other kinds of pressures in places like Somalia,
Afghanistan and Iraq; more nation-states make all of us safer. But the
Geneva Convention makes little sense when applied to a terrorist group or a
pseudo-state. If we must fight these kinds of enemies, we must create a new
set of rules.

In that important respect, the Geneva Convention will become increasingly
obsolete. Rather than attempting ‹ as Gonzales' shrill critics do ‹ to deny
that reality, we should be seeking to address it.

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