The Logic of Rules of War

The Do's and Don'ts of War

The Logic of Rules of War

The Do's and Don'ts of War

The Logic of Rules of War
Military analysis.
Feb. 7 2002 6:42 PM

The Do's and Don'ts of War

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Hi again, Dahlia:

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I doubt that we're as close as you suggest. You say that the Geneva Convention can and must apply to all the Guantanamo detainees because "the convention itself purports to control in all cases of declared war or of any other armed conflict … even if the state of war is not recognized by one of them." While I have never doubted that the Geneva Convention applies to all forms of armed conflict, including undeclared wars, it doesn't follow that it applies to all persons participating in all such conflicts. After all, the Geneva Convention covering POWs says (Article 4) that it applies to "militias and members of other volunteer corps, including those of organized resistance movements" only if they are "conducting their operations in accordance with the laws and customs of war." Now, I've pointed out earlier that the Geneva Convention doesn't itself spell out what these laws and customs entail, but the point here is that it's clear that the Geneva Convention doesn't view itself as automatically applying to every fighter in every war it conceives itself as covering. And it's interesting, don't you think, that the types of fighters it tries not to include in Article 4 are pretty much the types now at Camp X-Ray? (The administration has just decided to apply the Geneva Convention to the Taliban detainees but not to the al-Qaida detainees. This is a step toward where I have been drawing the line with my theory. Soldiers defending terrorists are not themselves automatically terrorists.)

You argue that Protocol 1, which the United States was right not to sign, is the reductio ad absurdum of the idea that you can make unfair wars fair. Rules of war, you say, are "inherently illogical." What's your argument for this? It's that terrorists refuse to abide by any rules, so trying to set up rules for them is "bizarre." All we can do, you conclude, is "set up pretty universal rules and try to hold ourselves to them." Isn't this like saying that since con artists refuse to honor contracts, trying to set up laws of contracts that apply to them is bizarre? It's simply not absurd to have the laws of contracts include laws about what to do when a contract is broken. And ditto for laws of war. One of the things post-violation laws do is deny rights to violators that they would, absent their violation, possess. And it's clear from the Article 4 passage about militias cited above that the Geneva Convention thinks just this way about its violators.

My framework for what the rules of war should be doesn't deny the detainees POW status at the cost of automatically doing the same to all U.S. military members who intentionally kill noncombatants. And my framework also doesn't classify the 9/11 Pentagon attack as a legitimate, non-terrorist act. That's because in my framework the essence of terrorism is wantonly attacking those who are no threat to you. If there is genuine concern for the other side's noncombatant population (as there would be if a civilian population was attacked to shorten the war to save lives on both sides) and if the other side attacked your noncombatant population first—conditions al-Qaida has never satisfied—then what you have isn't terrorism.

Regarding what I would do with the Guantanamo detainees that can't be done under the Geneva Convention: Yes, the Geneva Convention would still allow the United States to interrogate the detainees if they were classified as POWs. But the crucial difference is it would then be illegal to punish them in any way or deny them any privileges if they didn't answer questions beyond name, rank, and serial number. I want to have (and have provided a justification for having) the levers of punishment and privilege available to apply to the detainees to get beyond such trivia. As for repatriation, I don't just want the right to try them for war crimes. I want to have (and have provided a justification for having) the right to hold on to these a-holes forever.

You attribute to me the obviously wrong view that suicide bombers will be "deterred" by the lesser protections I want to afford them if they're captured. But I never said any such thing. In fact I never said anything about deterrence at all. And that was not an oversight. I don't think the rules of war are ultimately justified by appeal to their deterrence. Even in war, there are some things that are just wrong even if stigmatizing them won't deter everybody from doing them—like out of the blue killing people who pose no threat to you. Ideally, the rules of war should clearly reserve its protections for those who agree.

Thanks much,
Scott

Scott Shuger is a Slate senior writer who spent five years in the U.S. Navy and served overseas as an intelligence officer. Dahlia Lithwick writes about legal affairs for Slate.