September 30, 2005

That's the dramatic tension that drives the show. The Cylons aren't human, they're bio - engineered creatures. They're devious, and they're remorseless killers of humanity. However, the writers depict them in complex relationships with human beings. Some of them are subject to buried mission directives of which they are entirely unaware. Some of them don't even know they're Cylons...because they look, fell, and act just like humans. In addition to being portrayed as the enemy, they're portrayed as individuals.

So, after mulling that over as the credits rolled last Friday, my thoughts turned to Abu Ghraib, "corpses for porn," Guantanamo Bay, and Mr. Sullivan's indignation. I wondered about why I was affected by the pathos of the best sci - fi on television, but continued to feel nothing but a kind of intellectual curiosity about the analogous situation in Iraq: just where are the ethical lines, here? What are my obligations as an American and a self - described moral thinker? And ought I to share in Mr. Sullivan's public and oft - repeated outrage?

Two Sides

First, there is Mr. Sullivan's ideal: as Americans, we just don't do this sort of thing, and we certainly don't do this sort of thing in accordance with either tacit or explicit directives from high within the chain of civilian command. The Geneva Conventions do mean something, and their attempt to civilize the inherently uncivilized activity that is warfare ought to be respected in spirit and in practice.

Then, there's this: retired Captain Den Beste's summary of a bit of game theory called the Prisoner's Dilemma. The key portion:

One guy decided to run a computer tournament; people were permitted to create algorithms in a synthetic language which would have the ability to keep track of previous exchanges and make a decision on each new exchange whether to be honest or to cheat. He challenged them to see who could come up with the one which did the best in a long series of matches against various opponents. It turned out that the best anyone could find, and the best anyone has ever found, was known as "Tit - for - tat".

On the first round, it plays fair. On each successive round, it does to the other guy what he did the last time.

When Tit - for - tat plays against itself, it plays fair for the entire game and maximizes output. When it plays against anyone who tosses in some cheating, it punishes it by cheating back and reduces the other guys unfair winnings.

No - one has ever found a way of defeating it.

Now let's analyze two different and even more simplistic approaches; we'll call them "saint" and "sinner". The saint plays fair every single round, irrespective of what the other guy does. The sinner always cheats.

When a saint plays against another saint, or against tit - for - tat, the result is optimum but more important is that everyone gets the same result. When a sinner plays against another sinner, or against tit - for - tat, everyone cheats and the result is still even, though less than optimal.

But when a sinner plays against a saint, the sinner wins and the saint loses.

[...]

The Geneva Convention is deliberately constructed to be tit - for - tat. It says explicitly that a nation is obligated to follow the convention only if the other nation is also a signatory and is also following it. If the Geneva Convention was binding on signatory nations even against non - signatory nations, it would be a "saint" tactic. But since you follow the convention with others who also do, and don't against those who don't, that makes it "tit for tat".

Let's Go to the Text

What are commonly referred to as "The Geneva Conventions" are made up of four Conventions signed in 1949, and two additional Protocols from 1977. These are all descendents of conventions drawn up in 1864, 1899, 1907, 1925, and 1929.

The four 1949 Conventions all begin the same way:

The undersigned Plenipotentiaries of the Governments represented at the Diplomatic Conference held at Geneva from April 21 to August 12, 1949 [...] have agreed as follows:

With regard to Mr. Sullivan's concerns about Iraq, the applicable Convention is Convention III, Relative to the Treatment of Prisoners of War. I would direct your attention to Part 1, Article 2, which contains language common to all four Conventions:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The emphasis is mine, and I think the meaning is fairly clear: if a country is at war with another country or entity which is not a signatory to the Conventions, then that country's relationships with other signatories demand that it conduct itself in accord with the dictates of the Conventions...except where the non - signatory country or entity does not conduct itself in accord with the conventions.

And that, it would seem, would be that.

But...not quite. Two additional Protocols were added in 1977, to "reaffirm and develop the provisions protecting the victims of armed conflicts and to supplement measures intended to reinforce their application" under the auspices of the United Nations. The United States has not signed, ratified, or acceded to either Protocol, and as such they're not really binding.

Still, they're worth considering, if only as an example of how the internationalist movement sought to broaden the application of the original Conventions and ascribe more authority to the UN. In keeping with such efforts, things get a little muddy here. From Part I, Article 1 of Protocol I:

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

Note, first, the language referring to "international law derived from established custom, from the principles of humanity and from dictates of public conscience."

Then note the language I've emphasized for you: it directs any interpretation back to the language common to Article 2 of the original four Conventions. This, you will recall, included language exempting a signatory Power from the Conventions' requirements in cases where the opposing Power does not itself accept those requirements.

By this reference, the Protocol applies "established custom," the "principles of humanity," and the "dictates of public conscience" only when both Powers recognize them.

Protocol II "develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions or application." This, again, refers us back to the common Article 2 language, which describes the conditions under which Article 3 is applicable, and this means, once more, that the protections afforded by Article 3 do not apply to a power which does not conduct itself in accord with the conventions

The Power That Opposes Us

To begin with, Sadaam's Iraq was not a signatory to any of the Conventions or Protocols - - the closest analogue is when the King of Iraq acceded to the four Conventions in 1956. But Iraq currently exists in a phantom realm somewhere between a fully constituted State and a bunch of sectarian militias and, in any case, we're no longer facing the regular army of the former Iraq. The Power opposing us in Iraq can most properly be called a guerrilla force.

In the language of the Conventions, the rules they describe apply to 1) civilians and 2) those with combatant status.

Convention I, Article 13, Sections 1 and 2 define combatants as 1) members of the armed forces of a party to an international conflict, or 2) members of militias or volunteer corps including members of organized resistance movements, provided that they have a well - defined chain of command, are clearly distinguishable from the civilian population, carry their arms openly, and obey the laws of war as described within the Conventions. As noted, the former no longer applies, so our enemy must fall under the second set of requirements.

Convention III, Article 4, Section 2 reiterates these requirements. At minimum, achieving combatant status requires that an opposing Power carry its arms openly (Protocol I, Article 44, Sec. 3).

I suggest that suicide bomb belts, car bombs, and IEDs do not meet this standard. The greater truth is that the Power opposing us in Iraq meets none of the criteria for achieving combatant status and protection under the Conventions: it has no well - defined chain of command, it routinely hides among the civilian population of Iraq, it employs hidden explosives and suicide attacks as primary weapons against military and civilian targets, and it does not obey the laws of war as described in the Conventions.

This is manifestly true, and if you don't believe it do be so, you need to watch a few of these these beheading videos. Then, consider the use of mosques by the guerillas as strongholds and staging areas, in direct contravention of Protocol I, Article 53 and Protocol II, Articel 16. You might also want to take into account multiple attacks against worshippers at Shi'ite mosques, which is a considered a "grave breach" of the Conventions - - that is, a war crime, in accordance with Protocol I, Art. 85, Section 4. There is also the prohibition against indiscriminate attacks upon civilians found in Protocol I, Art. 51, Section 4, which covers any and all uses of bombs that are specifically intended to inflict mass civilian casualties.

I find what I've noted so far fairly persuasive: the guerillas fighting against us in Iraq are not entitled to protection under the Conventions. However, there's still more. With regard to the conduct required to achieve combatant status, Convention I, Article 3 states:

...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; (d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

I don't think I need to link to more reports of murder, beheadings, and hostage - taking. Just this week, five Shi'ite teachers were dragged from their classroom and shot, and this is in keeping with guerilla'a conduct throughout the conflict.

Once again, it is manifestly true that the Power that opposes us in Iraq does not meet the standard for protection set forth in the Conventions. The common language in Part 1, Article 2 of all four Conventions, and the language referring to that Article in both Protocols, make it clear that a signatory power has no obligation to afford an opposing Power the protections of the Conventions if the opposing power does not obey those Conventions.

This is not unique to the 1949 Conventions, by any means. The documented history of such agreements among potentially warring European powers is replete with the same kind of language. From "The Declaration on the Use of Bullets Which Expand or Flatten Easily in the Human Body," signed in the Hague on July 29, 1899:

The present Declaration is only binding for the Contracting Powers in the case of a war between two or more of them.

It shall cease to be binding from the time when, in a war between the Contracting Parties, one of the belligerents is joined by a non - Contracting Power.

You'll find the same language in the "Declaration on the Launching of Projectiles and Explosives from Balloons," signed at the same time and in the same place. The Declaration of Paris, signed in 1856 as a means of clarifying maritime law in a time of war, concludes with:

The present Declaration is not and shall not be binding, except between those Powers who have acceded, or shall accede, to it.

The Timing

There is, of course, a simple objection to all of this. The United States is being accused of systematic violations of Convention I, Article 3, as noted above. It's being accused of murder, mutilation, cruel treatment and torture, and the humiliating, degrading treatment of prisoners. Furthermore, as Mr. Sullivan would have it, these violations are sanctioned at the highest levels of command:

Violation of the Geneva Conventions? Who cares? This is the Bush administration. The Geneva Conventions are a dead letter to them. Decisions like this send a further message to the troops. This stuff ain't no thing. And we wonder why the allegations of abuse and torture keep coming. If the military spent an ounce of the effort they are now deploying to break the will of Ian Fishback on ridding the military of men who violate the Geneva Conventions, we might get somewhere. But just remember who ultimately sets the tone for the military: the Pentagon and the White House. And the message has gotten through loud and clear.

I choose not to dispute the abuse or its command sanction, tacit or otherwise.

How is it, then, that American soldiers achieve the status of "combatant," thus affording them the protections of the Conventions, but the guerillas fighting in Iraq do not?

Let's review.

Iraq, as it is constituted now, and as it had been constituted under Saddam, is not a signatory to the Geneva Conventions, and we no longer face the regular army of the former Iraq. The guerilla force currently arrayed against us is not a signatory, either.

However, the Conventions state that the United States' relationships with other Powers that have signed demand that we conduct ourselves in accordance with the Conventions...except in such cases where the Power that opposes us does not itself obey the conventions. This requires a certain degree of good faith on our part. We ought to act in accord with the Conventions until the Power that opposes us demonstrates its refusal to obey the laws of war.

With regard to Abu Ghraib, the United States did not meet this standard. Consider: the abuse at that prison occurred in October - December of 2003. At that point, American combat deaths numbered just over 300. The guerillas killed Shi'ite leader Ayatollah Muhammad Bakr al - Hakim and 80 others in August; and destroyed the UN headquarters in Baghdad that same month, killing envoy UN envoy Sergio Vieira de Mello. They bombed the Red Crescent (the Islamic Red Cross) in late October. All violations of the Conventions, to be sure, but it would be na�ve to suggest that these violations formed the cultural rationale for Abu Ghraib abuse, and that the "go ahead," if such a thing exists, was given between the cessation of major hostilities on May 1, 2003 and October 2003.

Giving maximum credit to Mr. Sullivan's argument, then, it would follow that any such "command decision" to absolve our soldiers from the observance of the Conventions with regard to resistance in Iraq was made prior to, or very soon after, the commencement of hostilities.

The question then becomes this: how did the American civilian command structure weigh relations with other signatories to the Geneva Conventions against the probability that the opposing, non - signatory Power would obey the laws of war set forth in those Conventions?

Again, giving credit to Mr. Sullivan's contentions: the answer is, obviously, that the civilian leadership decided the likelihood that the Power which opposed us would obey the Conventions was minimal, and that relationships with other signatory powers would either survive our holding the Conventions in abeyance, were damaged enough not to matter by that point, or weren't important enough to factor into the decision.

As the conflict wore on, the increasingly abhorrent tactics of the guerilla resistance made this decision appropriate. Given the conduct of the Islamist movement prior to and including the September 11 attacks upon New York and Washington DC, this seems like a pragmatic decision, in accord with the letter of the Conventions. If we regard our enemy as a non - state ideological movement that happens to be fighting against us in the Iraq theater, Captain Den Beste's "saint vs. sinner" argument becomes even more applicable.

In terms of the letter of the law and the pragmatic considerations of victory, it does not serve us to apply the largesse of the Conventions to those who do not recognize those Conventions.

In terms of the letter of the law, then, Mr. Sullivan is simply wrong.

But what of the spirit of the law?

That's a much more difficult question, and I will leave it for Part 2, next week.