Worried About Civilian Casualties in the War on Terror? Don’t Allow Terrorists to Masquerade as Non-Combattants

(Washington, D.C.): The Bush Administration has been roundly assailed at home and abroad over its decision to treat individuals captured in Afghanistan as unlawful combattants rather than prisoners of war (POW). While one would never know it listening to the complaints from allied government spokesmen and human rights activists, what is at issue is not the humane treatment of these detainees. They are all being treated well, considering they have to be confined — better than they were in Afghanistan, better than they would be in their own countries and certainly far better than they would have treated any bonafide American POW who fell into their hands.

What is, instead, at issue, are the implications of according such detainees the status of prisoners of war under the Geneva Convention. It is particularly important to understand these implications for the civilian populations at risk in the war on terrorism — especially at a time when media and policy elites are beginning to “hyperventilate” over reports of U.S. attacks in Afghanistan resulting in unintended and regrettable “collateral damage.”

Fortunately, in recent days, two published items have helpfully clarified the compelling reasons for the U.S. government to continue rejecting appeals to call the detainees POWs. The first is an excellent White Paper by the Foundation for Defense of Democracies co-authored by Andrew Apostolou, an historian at Oxford University, and Fredric Smoler, a professor of history at Sarah Lawrence College. The second appeared as an editorial in the Wall Street Journal on 11 February. Both should be required reading for everyone participating in the debate over those incarcerated at Gitmo.

Maintaining a strict distinction between lawful combatants (conscripts, professionals, militiamen and resistance fighters) and unlawful combatants (such as bandits and terrorists) not only protects the dignity of real soldiers, it safeguards civilians. By defining who can be subject to violence and capture, the horror of war is, hopefully, focused away from civilians and limited to those willing put themselves in the line of fire, and seek no cover other than that acquired by military skill.

If we want soldiers to respect the lives of civilians and POWs, soldiers must be confident that civilians and prisoners will not attempt to kill them. Civilians who abuse their non-combatant status are a threat not only to soldiers who abide by the rules, they endanger innocents everywhere by drastically eroding the legal and customary restraints on killing civilians. Restricting the use of arms to lawful combatants has been a way of limiting war’s savagery since at least the Middle Ages.

In addition to the legal and military practicalities, there is an obvious moral danger in setting the precedent that captured terrorists are soldiers. Not only does that elevate Mohammad Atta from a calculating murderer into a combatant, it puts the IRA, ETA and the Red Brigades on a par with the Marine Corps and the French Resistance.

The U.S. is trying hard to find the most humane way to wage, and win, this war. There is no precedent for this challenge and no perfect legal model that can be taken off the shelf. Yet it is precisely because the U.S. takes the Geneva Convention seriously, with both its protections for combatants and the line it draws between combatants and civilians, that the U.S. is being so careful in the use of the POW label. Some of the detainees may yet be termed POWs, but restricting the Geneva Convention’s protections to those who obey its rules is the only mechanism that can make the Geneva Convention enforceable.

Supreme Court Justice Robert Jackson once said that the U.S. Constitution is not a suicide pact. Neither is the Geneva Convention. If well-meaning but misguided human rights activists turn the Geneva Convention into a terrorist’s charter and a civilian’s death warrant, the result will be that it will be universally ignored, with all that implies for the future of the international rule of law.

If international human rights groups had the courage of their convictions, they’d applaud President Bush’s decision last week that the Geneva Convention applies to Taliban, but not al Qaeda, fighters captured by the U.S. In doing so, he is showing more respect for the Convention than his critics.

The core purpose of the Geneva Convention is to encourage the conduct of war in a way that minimizes violence to civilians. Another aim is to encourage respect for basic human dignities — toward civilians, combatants and captives. Yet another goal is to encourage warring powers to set up chains of command to ensure that combatants are held responsible for their actions.

One of the most important ways the Convention accomplishes these goals is to require that warring parties make a distinction between combatants and
civilians. Soldiers are supposed to be subject to a chain of command, wear insignia and carry their arms openly; they are required to abide by the laws of war, which forbid attacks on civilians. If they don’t, then they’re not soldiers; they are illegal combatants, not entitled to the protections of the Convention. Breaking down this distinction — as the human rights groups wish to do — would have the effect of legitimatizing terrorists and giving them more incentives to hide among civilians and go after civilian targets.

It doesn’t take a degree in international law to figure out that men who fly civilian airplanes into office towers aren’t legal combatants. Article 4 of the Geneva Convention specifies the conditions under which combatants who aren’t members of the armed forces may be deemed POWs. (See nearby box.) Those clamoring for a tribunal to decide the status of the al Qaeda detainees ought also to read Article 5, which says a tribunal is necessary only “should any doubt arise.” Where’s the doubt here?

Mr. Bush’s decision on the Taliban detainees was more difficult, and advisers made good cases both ways. In the end, he did what Presidents are supposed to do: decide. He ruled that Taliban detainees, as the fighting force of Afghanistan, are covered by the Convention but that they had forfeited the right to POW status since they had broken the laws of war as outlined under the Convention’s own provisions.

Mr. Bush’s decision may well save American lives. Most crucial, it allows the U.S. to interrogate the detainees, who may have information about other attacks. POWs are required to give only their name, rank and serial number and must be repatriated after hostilities end. It would be an act of national suicide to put these men back in circulation when their declared objective is to kill more Americans.

Ultimately, the U.S. will have to decide what to do with the detainees. That might mean trying them by military commission or in civilian court. The detainees come from 28 countries, and another option is to send some home for trial. Afghanistan said over the weekend that it plans to put the Taliban foreign minister on trial.

In the meantime, the international human rights groups continue their assault on America. Having damaged their credibility by raising false alarms about detainees in Guantanamo, they are now descending on Afghanistan, in search of evidence against the U.S. there. Human Rights Watch says it’s sending in a team to evaluate the extent of civilian casualties from the American bombing. It doesn’t seem to matter that never before in history has a warring power tried so hard to avoid killing civilians.

The 1950 Geneva Convention never envisioned the kind of war we’re now in. Yet by both its conduct of the war and its treatment of the Taliban and al Qaeda detainees, the U.S. has shown its respect for the Convention and the principles for which it stands.