Ratner doesn't just leave things out, he makes blatant mischaracterizations.
These include: 1) A legal vacuum exists at Guantanamo; 2) Assassination is legal; and 3) The Geneva Conventions protect civilians. ctually the paper protections are quite weak compared to the protections for combatants. Also, the paper protection to the wounded and detainees is not backed up by any regulatory architecture to enforce it, like other international regimes.
For my complete analysis see this link:
http://elected-swineherd.blogspo...hink-
again.html
Hi Dr. Charli
You wrote:
"Part of why the Bush Administration gets away with so much is that a huge gap exists between current norms and the outdated letter of the law."
Norms current with whom ?
Members of the European parliament? International Law profs of a transnationalist progressive bent? Deputy Ministers of Defense of small countries whose militaries have not seen combat in six decades and effectively have no armed forces to deploy ? Should these folks really be the determining voice in crafting the rules of a game they cannot themselves play, when he costs will be borne by others who will be shouldering that burden?
You have your premise backwards here -it is actually the "progressive consensus" that is out of step with international law governing warfare. The Bush administration is wrong for not following the letter of the law of the Geneva Conventions but quite right in rejecting the "progressive norms" as non-binding - as well as imprudent.
If anything, the Bush crowd might re-read Ex Parte Quirin. That decision pointed to the appropriate way to deal with enemy combatants caught out of uniform.
Funny, I suggested a Think Again piece on human trafficking a few years back. Even spoke to one of their editors at length, offering up some very specific examples of controversial questions concerning trafficking and how they fit into the Think Again format. Never heard back. Then, lo and behold, some months later, there are some of my questions being answered in a Think Again piece written by an "expert" from UNESCO-Bangkok.
My lesson? When it comes to Foreign Policy, think again.
Hey Mark:
Our own Supreme Court ruled that Article 3 does apply to GWOT detainees, it isn't simply a matter of the global progressive 'other's' view point, but our own federal government.
But you are correct in that part of the problem is that Bush & Co. did not fully embrace the precedent of Quirin.
Mark,
You ask "norms according to whom?" and the answer is, I'm referring to soft law - a general understanding among governments about the meaning of the law, evident in state practice, diplomatic discourse, and international jurisprudence. (I am not referring to the opinions of law professors per se nor military personnel in the field.)
The ICRC amalgamated the customary laws of war into 101 basic rules in 2005. My point is that some of these like the idea that a state's obligations under the Geneva Conventions are not dependent on whether the other side also complies, were never agreed to through a multilateral process but have evolved through other mechanisms.
I don't think my premise is backward; sounds like you and I agree on the premise, which is that international norms have outpaced treaty law. We simply disagree as to which is normatively superior. You prefer the earlier letter of the treaties, I think; I'm in favor of some of the normative changes that have occurred.
Either way, I suspect we might also agree that soft law is a poor substitute for treaty law. Given the disconnect we're both describing, wouldn't it make sense to revamp the multilateral consensus through the development of a new Additional Protocol to clarify some of these points?
Back when I was a unit training officer, I would invite a Judge Advocate Officer to come and teach the Law of Land Warfare class. Talking with the soldiers afterward I discovered that what they heard is not what the instructor said. They heard the things similar to the misconceptions listed above. Generally the impression was recieved that the law of War is a bunch of arbitary rules though up in an Ivory Tower someplace that endangered their safety and the safety of non-combatant civilians with no practical benefit to any one.
There is a real need to work on how to present the Law of War to people outside the legal and International Relations communities.
I am not entirely sure of how to do it but we must remember the important audience is the Military practitioner often without a collage education or even if he has one he is not interested in legal maters. He or she has to see how it works in a real situation and is of benefit to them. I believe it is a much benefit to your basic practitioner, but it is often hard to see that from the usual presentation.
Hi Bill,
I never said the US should ignore Geneva, we followed Geneva in WWII and that was no bar to trying war criminals during the war and postbellum. It's just that the progressive interpretation of that document is exactly that - an interpretation - not IL itself.
Dr. Charli
Yes, you are quite correct that we would agree on the superiority of binding treaties.
Some would say that IL is already quite "soft" compared to positive law; further "soft law" interpretations by diplomats are something that rests on the sufference of each state's political climate and - ultimately - the quid pro quo of events in the field. Infractions or restraint in conflicts tends to eventually be "mirrored" by adversaries in practice in spite of what formal rules might require.
Regarding a multilateral consensus, that would be nice but unlikely unless the states intend to draw clear distinctions between war and military operations other than war where a much more restrained, constabulary, model of rules is appropriate.
States that are likely to have to fight conventional wars or suppress insurgencies are not going to agree to accept police model norms that advantage guerillas/terrorists/irregulars preferred by states that face little conceivable threat on that score. No incentive and real disadvantages for them.
What is Turkey doing with its PKK/Kurd prisoners, or is it just "kill 'em all"?
As a follow-up, does NATO have a prisoners policy, not that it's not doing war, but dirty insurgency ops?
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