Wednesday, June 03, 2009

Georgetown Lawyers to Urge New Geneva Convention for Terrorism by Jeff Stein

U.S. and European officials have been at war over the wording of the Geneva Convention ever since American forces invaded Afghanistan in late 2001 and began rounding up terrorist suspects and Taliban fighters.

Maybe it's time for a new Geneva Convention for the age of terrorism.

At an international conference on terrorism in Italy last month, European officials heatedly denounced Bush administration detention and interrogation practices, arguing, as one put it, that the United States had to "come home" to the rules of land warfare agreed upon by most of the world's governments in 1949.

The conference attendees - for the most part human rights lawyers and scholars, recent government counterterrorism officials, and national security journalists - were nearly unanimous that that the Bush administration's secret CIA prisons and "enhanced interrogation techniques" were in violation of the Geneva Convention on the treatment of prisoners of war.

But there was far less agreement on how to deal with captured civilian fighters in today's undeclared, seemingly interminable, so-called war on terrorism, such as al Qaeda operatives or the Taliban.

Disagreements were so sharp by the third and final evening of the conference that it occurred to me that only another Geneva Convention could iron out the problems. The international community - not to mention the United States -- needed to update the internationally agreed-upon rules of war for the capture of soldiers fighting in units without uniforms or insignia.

As it turns out, Georgetown University's new Center on National Security and the Law had already been thinking the same thing.

Its legal scholars, until recently headed by Neal Katyal, now the Obama administration's Principal Deputy Solicitor General, have been quietly working on a plan to push for just such a new international agreement for terrorism and stateless armies.

"It's more of an idea than a full fledged program," said Matthew Gerke, a fellow at the center who worked for three and a half years in the Pentagon and in Iraq on rule of law issues.

The Geneva Conventions generally apply only to international conflicts between signatory states -- the Taliban and al Qaeda not being among them, it hardly needs saying.

The only part of it that applies to conflicts like the war against al Qaeda is Common Article 3, which "is very, very vague," Gerke said in a brief telephone interview Wednesday.

And it requires only that trials and sentences be carried out "by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples" - whatever that means.

"We need another Geneva Convention, or at least an authoritative interpretation of our responsibilities under Common Article 3," Gerke said.

In 1977 the Carter administration negotiated and signed two additional protocols to Geneva that fleshed out the requirements for the humane treatment of detainees, including those who were not captured in an international conflict state sponsored, i.e., rebel groups in civil wars.

But even that did not foresee the capture, detention and prosecution - if any -- of transnational, armed groups in mufti like al Qaeda.

In any event, the Senate refused to ratify the agreement after it submitted by the Reagan administration - as it has ever since.

The administration of George W. Bush had no interest in reviving it, and the Obama administration has not yet taken it up.

"Soon," Gerke said, the Center on National Security and the Law hopes to "roll out" a campaign for a new Geneva Convention, hopefully boosted by an American figure with international stature.

Its first step would be to mount a new push for Senate ratification of the "Additional Protocol No. 2, Relating to the Protection of Victims of Non-International Armed Conflicts."

That would be followed by an international campaign for a comprehensive new set of rules under Geneva.

The squabbling and animosity between the United States and the rest of the democratic world on handling terrorism has got to end, Gerke said.

"Let's stop throwing stones at each other."

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