By Scott Horton
In 2003, at a meeting with a group of senior staff from the US judge advocate general's office (which deals with criminal trials of military personnel), I was told that as a result of decisions taken in the Bush White House, a long American tradition of compliance with the Geneva conventions had come to an end.
The consequences will be apparent soon enough, I was told. In April 2004, the first photographs of prisoner abuse in Iraq appeared in the New Yorker and on CBS's 60 Minutes. The Bush administration struggled to attribute the scenes of torture to a "few bad apples," but it quickly became plain that these photographs were the result of policy choices, and the abuses of Abu Ghraib were going on in Bagram, Guantánamo and unknown CIA "black sites" around the world. As classified administration documents began to leak, we soon learned that denigrating the Geneva conventions was a sort of sport for neocon lawyers - they were derided as "quaint" and "obsolete," and their protections of civilians amounted to "law in the service of terrorists".
Circumvention of the conventions was the leitmotiv of the Guantánamo detention facilities. Justice department memoranda noted the selection of the American enclave on Cuba was driven by its legal geography, right in the vortex of a black hole. But the supreme court put an end to these games by ruling, in Hamdan, that even if the prisoner of war protections of the Geneva conventions didn't apply, the protections of common article 3 - the so-called humanitarian baseline - did. The Bush administration had systematically violated them.
The supreme court ruling put the spotlight on the 1949 restatement of the Geneva conventions, whose 60th anniversary we mark today. While the Geneva convention process dates back to 1864, it emerged from the ashes of the second world war as a far more vigorous protector of the rights of civilians.
In the closing days of that war, legal scholars pulling together charges against Axis political leaders and commanders noted that many of the horrors of the conflict - the Nazi extermination camps, the forced movement of labourers, systematic persecution of Jews, Gypsies and other minorities - were not clear violations of the Geneva conventions. That led to broad recognition that the conventions were failing to adequately protect civilian populations in wartime. Common article 3 was the answer to this shortcoming: it established a sort of safety net of minimum rights that would be available to everyone, without regard to the technical character of the conflict. The Bush administration's efforts to evade the Geneva conventions stumbled on this very provision, which was the greatest achievement of the 1949 effort.
Barack Obama gained the presidency with promises to restore America's fidelity to international law. A lawyer and law professor, he attacked the Bush administration's legal shortcuts in the "war on terror" and made a pledge to close Guantánamo. Since his inauguration, he has offered lofty rhetoric and reiterated pledges to end the Guantánamo camps, forbid torture and end the process of "extraordinary" renditions involving black sites. But his actions fall remarkably short of his words.
Let's start with Guantánamo. Not only is it still in business, word is now spreading that the original one-year deadline for its closing can't be met. Obama has progressively embraced many of his predecessor's dubious ideas, including the notion that under the laws of war he was somehow entitled to detain any of the prisoners there indefinitely, without criminal charges.
Moreover, even the pledge to end torture at Gitmo has its exceptions. Force-feeding operations which have continued at the detention centre during the course of the Obama administration fail to conform to the standards of the Malta declaration, and they are apparently administered with such violence and brutality that one prisoner who was being force-fed died under unexplained circumstances. The Pentagon had hushed up all discussion about the case, and one official responsible for detainee affairs tells me "when the full story comes out, we won't look good". That is probably an understatement.
Even as Gitmo winds down, the US continues to operate large-scale detention facilities in Iraq, and it is actually ramping up its prison capacity in Afghanistan. While the conditions in those facilities have certainly improved since 2004, the long-term "security" detentions in these facilities cannot be squared with international law. The US should be doing what Geneva and other international law instruments expect - its foreign prisons must conform with the law of the host country, and prisoners held in them must have the rights that local laws and international agreements, including the Geneva conventions, guarantee them.
The Bush administration's attempted coup de grace to international humanitarian law came when former state department lawyer John Bellinger argued that the entirety of the convention against torture did not apply in wartime. As Condoleezza Rice's lawyer on the national security council, Bellinger played a role in the authorisation of waterboarding, so he clearly has a personal stake in the issue. He argued that the laws of armed conflict as lex specialis simply displaced human rights law, including the prohibition on torture. Obama has yet to discard this view, which is as essential a part of the Bush torture edifice as the notorious memoranda of justice department lawyers John Yoo, Jay Bybee and Steven Bradbury.
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 that 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.
