The Geneva Conventions Are Not A “Living and Breathing Document” (Interrogations, The Way Forward)
Posted on September 17, 2006
Are the Geneva Conventions a “living and breathing document” like many liberal academics ascribe to the US Constitution? We need to answer that question because that represents the underlying fear that we are having in the debate on interrogations.
If we admit that fear, there is actually an easy way forward that is supportive of the Uniformed Military engaged in the Global War on Terror.
First, Congress must reaffirm Article 4 of the Geneva Convention:
Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c ) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
Second, Congress must clarify certain terms within Article 3:
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;(c ) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
I believe that Congress can “thread the needle” if clarifying definitions are adopted along the following:
Any methods of interrogation that are modeled after current periods of training that any members of the US Armed Forces may be subjected to shall not be considered cruel treatment, torture, outrages upon personal dignity humiliating or degrading treatment.
Anything less, would be considered an outrage against the uniformed members of the Armed Forces who would see terrorists being placed in higher stature than ourselves.
John McCain is very troubled that we are “changing a treaty which no other nation on Earth has changed for the first time in 57 years.”
I am very troubled that we are in a modern day “legal environment” where we are forced to define what in the past was plain and obvious. In 1949, it was very clear what those words were. Maybe we should simply go to a thrift shop and purchase an old dictionary from 1949.
John McCain has forgotten that this is the era where liberal Judges and ACLU Lawyers are redefining the term “marriage,” a word that has been defined as commonly accepted for 2,000 years let alone 57 years.
If Congress does not define “cruel treatment, torture, outrages upon personal dignity, humiliating and degrading treatment” they will be defined by ACLU Lawyers in concert with liberal Judges.
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9 Responses to “The Geneva Conventions Are Not A “Living and Breathing Document” (Interrogations, The Way Forward)”
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That’s a very good question. I had to stop and think about it for a bit.
Ultimately, my answer would be no. The key distinction is that the Constitution binds one entity (yes, it’s made of states, but the Federal government is very powerful ) while the Geneva Convention is a treaty binding many entities.
A treaty quickly becomes useless if it is subject to much interpretation by individual nations. If the treaty lacks sufficient clarity, the world should sit down and ammend it.
Interesting concept, but I don’t see how it could ever work. Both sides would say “They started it first!” and the situation would devolve quickly.
There needs to be a universal standard for wartime behavior. The Geneva Convention was our first attempt at it, but the drafters clearly did not envision the current situation well enough to give clear guidance.
I’m not foolish enough to think it will happen, but the proper way out of this mess it to form a consensus and ammend the treaty itself. In the meantime, we should try to stay true to the intent of the treaty.
Stay true to the intent of the treaty? Just as we should stay true to the “intent” of the Constitution. In that way the two are alike.
If we are to look at the “intent” of the treaty then why did a U.S. Court just interpret it outside of that “intent”? The intent of the treaty was to protect people who obeyed it. It does not apply to non-signatories. If someone does not follow it, they are no longer protected by it. So, why did a court change that. Now those that do not abide by are still protected by it. Insanity.
Its like the only country it does apply to is the U.S. And therefore it doesn’t do much but tie our hands. So, why are people worried that if we clarify it that it will jeapordize us being protected by it. Heck, those that break everyone of the rules it has, are still protected by it.
Please provide a citation. I’ll comment further in the morning.
All I know is that the Court ruled that Article 3 of the Geneva Conventions applies to Al Qaeda. Al Qaeda is not a signatory nor abides by the Geneva Conventions. Therefore, the intent of the Geneva Conventions which only protected those that do abide by its rules should not apply to them.
Your understanding of the decision is incomplete. SCOTUS held that there was no legal basis for the President to create a specially construct military tribunal. That being the case, the detainees either need to be tried under Article 3 compliant courts-martial or congress needs to explicitly authorize a specially constructed tribunal.
I would particularly recommend reading the last half of page 6 and the first half of page 7. The Court discusses how Article 3 distinguishes between wars between signatories, wars between a signatory and a non-signatory, and all other wars. It sets “certain provisions protecting “[p]ersons . . . placed hors de combat by. . . detention,” including a prohibition on “the passing of sentences . . . without previous judgment . . . by a regularly constituted court affording all the judicial guarantees . . . recognized as indispensable by civilized peoples.””
I’m not qualified to comment further, but it appears the the Convetions were more forward-thinking than your or I believed.
Frankly I don’t give a care what the unelected Oligarchy of the Supreme Court said since the Geneva convention is not binding on the U.S. unless elected Congress says it is.
This is because the Congressional power to declare war gives them precedent over any treaty. This also means Congress can alter the Geneva Convention or any other document in whatever way they please.
Interesting viewpoint. My understanding is that SCOTUS provides a great counterbalance for the President and Congress specifically because of it’s unelected nature. They’re the only branch that can afford to ignore short-term political bickering.
The ruling does not disagree with you. They simply said that Force Authorization passed by congress did not offer even the slightest hint as to how detainees should be handled. Thus the president needs to use either an existing standard (either UCMJ or Geneva) or work with congress to pass new legislation.
This is probably nitpicking, but the Geneva Convention exists outside of our jurisdiction, so we can’t unilaterally alter the treaty. I think you meant that we can alter our level of adherence to it.
Jeff Molby,
The court has to power to judge by the law but the majority of the power was placed in the hands of Congress where it is divided into the hands of a multitude of people instead of the hands of one executive branch member or into the hands of 9 judicial branch members.
The Judicial branch is really the weakest branch as Congress can do quite a bit to control the excesses of the judicial branch but allows them a fairly free reign. In return for their generosity the federal courts take power from the people and the states and give it to Congress. The Constitution barely enters into the agreement except to be misinterpreted in order to strengthen the federal government.
Politics is a major part of the rulings of the Court. We have a number of Justices that favor international law over the U.S. Constitution.
If I was not so miffed about the above then I might actually agree with the court in this case as only Congress has the power to alter our level of adherence to the treaties.